'library of congress.* 



:\'a { 



t — ^ 

f UNITED STATES OF AMERICA J 




N OTES 



CONSTITUTIONAL HISTORY, 



UNITED STATES, 



• 

KENNETH McINTOSH, 
U 

pOUNSELOR-AT-LAW. 







pittsburgh. pa. 
jJames Harry, 

1877. 



>v 



3* 



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.tft* 



COPYRIGHTED BY K. MclNTOSH, 1877. 



PRINTED BY NEVIN, GRIBBIN &. CO. 



PREFACE. 



This collection of parts of lectures given be- 
fore the students of Westminster College, New 
Wilmington, Pa., is published by request of 
President E. T. Jeffries, D. D. 

The opinions expressed on disputed questions 
which arose in our history, I think, are not par- 
tisan. The student can investigate and judge 
for himself of their correctness. 

I must express my gratitude to my honored 
teacher, Professor Henry W. Torrey, of Har- 
vard College, for the interest he gave me in this 
study, and to the Honorable R. B. Carnahan, 
of Pittsburgh, for information on the practical 
working of our governments. 

K. McIntosh. 
Pittsburgh, Pa. 



INDEX. 



PAGE. 

Chapter I. Provincial Colonial Legislation, . . 9 

■ II. Proprietary " " ... 25 

; ' III. Colonial Charter Governments, . . .39 

" IV. Growth of a National Sentiment, . . 57 

" V. Tripartite Division of Govermental Powers, 73 

" VI. Two Chambers, 87 

VII. Bill of Rights, 101 

" VIII. Bill of Rights Continue!, .... 115 

IX. The Judiciary Jay to Marshall, . . 127 

X. " " Taney, 141 

" XL " " Chase, . . . . 155 

XII. " " Waite, 167 

Appendix— The Constitution 177 



CHAPTER I. 



COLONIAL LEGISLATION. 



I. — VIRGINIA AND ITS PROVINCIAL GOVERNMENT. 



During the reign of Elizabeth, Virginia was the 
name given to the southern part of North America. 
That enterprising Queen had desired the new w r orld 
to he colonized, and her successor, James, proceeded to 
deed out to his subjects the vast unknown regions of 
the West. Letters patent were issued in April, 1606, 
to Sir Thomas Gates, Somers, Hackluyt and their as- 
sociates, granting to them those territories in America 
lying on the sea-coast, between the thirty-fourth and 
forty-fifth degrees of north latitude, together with all 
the islands within one hundred miles of their shores.-" 

The patentees were required to divide themselves 
into two distinct companies — the one consisting of Lon- 
don adventurers, whose projected establishment was 
the first, or southern colony ; the second, or northern 
colony, devolved on a company of merchants belong- 
ing to Plymouth and Bristol. The northern colony 
assumed the name of New England (1614), while the 
southern retained the name of Virginia. 

The patentees were authorized to transport settlers 
to their lands, and the colonists were to enjoy the lib- 
erties and privileges of English subjects. 

* Grahame's U. S. History, vol. L, p. 44. 
2 



10 COLONIAL LEGISLATION. 

The supreme government of the colonies was vested 
in a Board, resident in England, which was to be nom- 
inated by the King, and ruled by such ordinances as 
he might enact. A subordinate jurisdiction, chiefly 
executive, was given to the colonists themselves. The 
colonies were to have freedom of trade with foreign 
nations, and liberty to search for and open mines, and 
power to levy duties on foreign commodities. America, 
thus being a part of the British Empire, the colonists 
were permitted to enact their own local laws, under 
certain restrictions and qualifications. 

The first legal code, or constitution, of Virginia (if 
a few rude measures of expediency can be dignified by 
being called a constitution), was carried from England, 
carefully sealed up in a tin box, in 1606.* They con- 
sisted of instructions from King James for the govern- 
ment of the colony, and were read at Point Comfort, 
where the box was first opened. The King therein 
appointed seven Councilors, with powers to elect their 
President, and with other defined prerogatives, which 
were regulated with royal wisdom and authority. 

Herein was the type of what has been known as 
Provincial Government, to which the Colonies of Vir- 
ginia, Georgia, North and South Carolinas, New 
Hampshire, New York and New Jersey were subject. 
A Governor and Council appointed by the Crown, to- 
gether with a body of Representatives elected by the 
colonists, framed the laws and governed the colony. 
It was the system in which the King of England had 
the most power, and in which the republican spirit of 
America was the most thoroughly checked. As we 

* Hildreth's U. S. History, vol. i., p.100. 



VIRGINIA. 11 

tra06 the history of Virginia, its nature will be better 
understood. 

Jamestown haying been selected as the place of set- 
tlement by the founders of Virginia, the genius of 
John Smith rather than the instructions of the King, 
enabled the colony to survive. Not laws, but men, 
were needed. Had Sir Walter Raleigh, like Smith, 
given his personal efforts to the colonization of Vir- 
ginia, instead of merely sending out ships for that pur- 
pose, he might have been justly styled the Founder of 
Virginia. Raleigh's career as a courtier and politi- 
cian at the court of Elizabeth, as well as his misfortunes 
in the reign of James, compelled him to abandon his 
efforts at the colonization of the new w T orld, When 
Jamestown was founded, and Smith was struggling 
amid the hardships of infant colonization, Raleigh 
was in the Tower, sighing to explore the fabulous Em- 
pire of the West. 

The London Company of Merchants, who were de- 
fraying the chief expenses of the Virginia colony, 
did not find it a mine of wealth. However, a new 
charter was granted to them three years after the 
founding of Jamestown, May, 1609.* 

By this charter, the stockholders of the company 
were to choose its Councilors and Treasurer, who 
was to be the chief executive of the Company. The 
patentees, consisting of Peers (31), Knights (98), Doc- 
tors, Gentlemen, Merchants and citizens to great num- 
ber, now received from the King a territory 400 miles 
wide, extending from the Atlantic to the Pacific 
Ocean, Point Comfort being on the dividing line run- 

* Hildreth, vol. i., p. 108. 



12 COLONIAL LEGISLATION. 

ning east and west. This company, with its ample 
domain, now proceeded to reconstruct the local gov- 
ernment at Jamestown.* The offices of president and 
council in Virginia were abolished, a new council was 
established in England, and the company empowered 
to fill all future vacancies in the council by election ; 
and to this council was committed the power to re- 
model the magistracy of the colony, of enacting all 
the laws that were to have place in it, and of nomi- 
nating the officers by whom the laws were to be exe- 
cuted. The London company appointed a Governor 
of Virginia for life, who had the sole superintendence 
of local affairs. The company was also empowered to 
make laws for the colony, conformable to the laws of 
England, " as near as might be " — a fundamental prin- 
ciple of colonial legislation. Even under this system 
of foreign rule, it was stipulated on behalf of the 
colonists and their posterity, that they should retain 
all the rights of Englishmen. It was a phrase that 
sounded well, even if the colony were ruled like a 
camp. 

Under the new system, Lord Delaware was appointed 
to rule the colony. His deputy proclaimed the new 
order of things in Virginia, but the skill and resolu- 
tion of Captain Smith, saved the feeble colony from 
the legitimate results of bad government. Sir Thomas 
Dale acted as dictator in the colony. Rigorous laws, 
devised in England, and proclaimed by the Governor, 
were used to bring order and harmony to the affairs of 
Virginia, now so unprofitable to the London stock- 
holders. 



* Grahame, vol. i., p. 57 



VXBOINIA. 13 

Before the appointment of Yeardley to be Gov- 
ernor, January, L619,* the company had re-established 

a local council to check the tyranny of Governor 
Argall. 

In 1619, Governor Yeardley called the first Vir- 
ginia Assembly. It consisted of the Governor, Coun- 
cil and deputies, called Burgesses, from the eleven 
plantations. In 1621, the privileges of a General As- 
sembly, to consist of a Governor, Council and House 
of Burgesses, were confirmed to the colony by the 
London company, and a constitutional frame of gov- 
ernment, modeled after that of England, was granted 
irginia.f For the enactment of local laws, the 
Governor and Council appointed by the company 
were to be joined by delegates chosen by the peo- 
ple. For the passage of a law, the separate assent of 
the Governor, Council and Assembled Burgesses was 
required. The company in England had a veto on 
the laws, and sat as a court of appeal from the General 
Assembly in Virginia, which, in addition to its legis- 
lative powers, was the highest judicial court in the 
colony. 

Colonial legislation compelled attendance upon the 
services of the English Episcopal Church, and made 
the people contribute toward its support. The Gov- 
ernor could lay no tax except by authority of the 
Assembly, and the concurrence of the Council was ne- 
ry before a levy of men for the public service 
could be made. The commanders of plantations were 
judicial officers, as well as executive. The prices of 

* Hildreth, vol. i., p. 117. 
f Hildreth, vol. i., p. 12a 



14 COLONIAL LEGISLATION. 

commodities were fixed by proclamations, except that 
of corn, which was left free, in order to encourage its 
growth. Taxes were paid in grain and tobacco, while 
police regulations were made, one of which was that 
at the beginning of July the inhabitants of every 
plantation were to fall upon "their adjoining salvages 
as they did last year." The laws of England, which 
were held to be in force in all the colonies, as far as 
they were applicable to the circumstances of the peo- 
ple, regulated the rights of property, personal rights, 
and the punishment of most crimes.* The General 
Assembly did not claim to be able to bind English- 
men on such important subjects. Laws enacted by 
the Assembly had no force till ratified in a general 
court of the London company in England and returned 
under their common seal.f The reign of the company 
was not permitted to continue. In 1624, the link that 
separated the colony from the King was broken by 
the writ of quo warranto, which swept away the charter 
of the company, and placed Virginia in the hands of 
the Stewart Kings. Eighteen years afterwards the 
Assembly of Virginia declared to the King that his 
government over them had been comparatively happy, 
while that of the company had been intolerable, abound- 
ing in " monopolizers, contractors and pre emptors in- 
cessant." 

In England, the Revolution came and Virginia 
continued true to the Stewart Kings. The cannons 
of the English Commonwealth forced upon the colony 
a popular form of government. Cromwell and his 

* Hildreth, vol. i., p. 134. 
f Jefferson's Notes on Va. 



VIRGINIA. 15 

adherents were popular in New England ; but the 
cavalier emigrants, who predominated in Virginia, 
were hostile to the Commonwealth. The Puritans of 
New England hailed with joy the expulsion of the 
Stewarts. Virginia, like the royal house itself, had to 
be met and conquered. "The Virginia cavaliers con- 
ceived a violent antipathy against all the doctrines, 
sentiments and practices that were reckoned peculiar 
to the Puritans." * 

During the English Commonwealth, important 
changes w r ere made in the government of Virginia. 
Taxation, the erection of forts, and the maintenance 
of an army, were to be only by the consent of the 
Virginia Assembly. The suffrage was extended to all 
tax-payers, and the Assembly elected the Governor, 
Councilors and other chief officers.! 

With the restoration of Charles II., however, the 
suffrage was again restricted, and the government 
passed into the hands of the King and wealthy plant- 
ers. The system of plantations in Virginia, differed 
from the town system of New England. The former 
was allied to the aristocratic system of English 
estates, the latter fostered a spirit of local independ- 
ence, and a consciousness of the interest of each in 
the welfare of the entire colony. The Puritans 
passed laws for their entire people, and knew, at times, 
how to be intolerant, narrow, cruel and selfish ; the 
planiers of Virginia, too, after the restoration, legis- 
lated in the interest of the dominant party. Harsh 
laws were enacted against the Quakers and all others 

: ahame, vol. i., p. SO. 
+ Hildreth, vol. i., p. 509. 



16 COLONIAL LEGISLATION. 

who refused to attend the parish churches. The 
Restoration of Charles II. was made a holiday and the 
Church of Englaud was hedged about by the most par- 
tial laws (1662) . The Governor and sixteen Councilors 
held from the restored King a commission of oyer 
and terminer, and judged civil causes above £15. The 
Assembly was still the highest court of appeal. In 
1671, Governor Berkeley thanked God there were no 
free schools nor printing in Virginia, for " learning," 
said he, " has brought disobedience and heresy and 
sects into the world, and printing has divulged them 
and libels against the best government." * The 
friends of prerogative had formed a government in 
accord with this notion of popular education. In 
the provincial manner, the King appointed the Gov- 
ernor and Council, and f the Governor appointed 
eight Commissioners in each county, who had the 
power of justices of the peace, levied taxes, and 
enacted local laws. They held their powers at 
the will of the Governor, or for life. By such 
means, did the wealthy planters and the friends of 
royalty rule Virginia. The Assembly continued in 
office for an indefinite number of years, from 1661 to 
1675, and enacted that none but householders and 
freeholders should have a voice in the election of Bur- 
gesses. The General Assembly, which was composed 
of the Council and the Burgesses sitting in one house, 
was divided into two houses, and the Council was 
given a negative on the laws. Appeals lay from the 
Supreme Court to the King and Council in England. 

* Hildreth, vol. L, p. 526. 
f Hildreth, vol. i., p. 516, 



VIRGINIA. 17 

Trade with foreigners was suppressed and the State 
iraa Stripped of her territory 

In 1676, Bacon's Rebellion was the indignant op- 
rising of the people against aristocratic violence and 
extortion. Bacon's laws, for a time, restored popular 
government, but the triumph of Governor Berkeley 
brought back arbitrary government. (1G77.) 

From among the wealthy planters, were chosen the 
Council, Assembly, justices and other officers of gov- 
ernment. Financial prosperity gave contentment to the 
poorer classes, and the oligarchy that ruled the colony 
were satisfied with the extensive powers granted to 
them. 

In 1705, finding out that other colonies enjoyed 
greater privileges than they enjoyed, "they began," 
says Surveyor General Quarry, "to imbibe the ma- 
lignant humor of the charter colonies." Hostility to 
British taxation, began to sow the seeds of independent 
self-government, and the agents of the King of Eng- 
land began to find trouble. The Governor of Virginia, 
from the reign of Queen Anne to the Revolution, 
a period of G3 years, f drew his pay in England, 
while the duties of his office were performed by his 
deputy, who received two-fifths of the salary (£800) 
for his services. Thus, in the provincial governments 
M well as the proprietary, the Governor's deputy 
ruled the colony. 

Deputy Governor Mott effected the fifth revision of 
the Virginia code of laws, in 170"). Slavery was now 
regulated and protected. Each county was given two 

* Jefferson's Notes on Va., \>. 
t Hildreth, to1.1L, i>. - 



18 COLONIAL LEGISLATION. 

Burgesses, to be elected by the freeholders, and the 
possession of large tracts of land in the hands of in- 
dividuals encouraged. * Three hundred pounds 
(£300) of quit-rents, together with the duty from ex- 
ports of tobacco to the extent of £4,000, were applied 
to support the civil list. 

In 1718, however, the Assembly declared that its 
consent was necessary for their taxation by Parlia- 
ment, f 

The sixth and last revision of the colonial laws of 
Virginia took place in 1749. J The King having 
made a free use of his veto power, the Assembly in 
an address to him expounded the principles of colonial 
legislation as it knew them. " When a law enacted 
here hath once received your Majesty's approbation, 

* * the same cannot by the legislature here be 
revised, altered, or amended without your Majesty's 
permission." Thus the laws approved by the King 
had a more fixed and fundamental position than the 
mere local legislative enactments which might yet be 
vetoed by him. 

The progress of the spirit of independence was slow 
in Virginia since the power of the crown was sur- 
rounded by so many bulwarks. Its provincial form of 
government, its wealthy planters who clung to aristo- 
cratic forms and customs, its poor whites, dependant 
on the rich, and slaves submissive to their masters, its 
established church and its hostility to Puritanism, 
made its government cling to the mother country. 

* Hildreth, vol. ii., p. 240. 
f Hildreth, vol. ii., p 327. 
X Hildreth, vol. ii., p. 414. 



VIRGINIA. 19 

The petition of the Council and Burgesses of Vir- 
ginia to the King, their memorials to the Lords and 
remonstrances to the Commons in the year 1764, be- 
gan the Revolutionary contest in Virginia. The 
Stamp Act was followed by the resolutions of the 
House of Burgesses of 1765, which declared the in- 
dependence of Virginia of Parliament in matters of 
taxation. For eleven years the people of Virginia 
were agitated by the colonial dispute with Great 
Britian, and finally joined in the war for Independ- 
ence. * 

When the Assembly cried "Treason ! !" in response 
to Patrick Henry's eloquent appeal in favor of armed 
opposition to the King, it was the clashing of the con- 
servative cavalier element with the pent np indignation 
of one who rose from the people and who knew and 
felt the wrongs of a long-outraged and down-trodden 
community. The reaction placed Virginia in the 
front of Revolutionary affairs, and in wealth and 
population she excelled every other colony. 

In 1776, upon the recommendation of the Conti- 
nental Congress, Virginia, like most of the other 
Stales, established a new constitution or ordinance of 
government in harmony with the systems of popular 
government about to succeed colonial English rule. 
Jefferson f names the ordinance framed in Virginia 
the first constitution which was formed in the United 
States. It was so skillfully framed that it was not 
found necessary to change it until 1830. This indi- 
cates the growth Virginia had made in Republicanism . 
during the years just before the Revolution. 

* Jefferson's Notes on Va.,p. 41f>. 

t Notes on Va., p. 360 of vol. viii. of his Works. 



20 COLONIAL LEGISLATION. 

The Presbyterians led in an attack on the Anglican 
Church, and demanded the civil equality of every de- 
nomination of Christians. Madison is said to have 
imbibed his belief in the freedom of the conscience in 
matters of religion from the Presbyterian, Witherspoon. 
The Quakers, too, and other sects that sprung from 
the people, aided by Jefferson and the most liberal of 
the Episcopalians, united to secure religious equality 
before the law.* Here, then, rose one article in the 
Virginia Bill of Eights. It prevented a repetition of 
a dark page in her history .f 

Several acts of the Virginia Assembly of 1659, 1662 
and 1693 had made it penal in parents to refuse to 
have their children baptized ; had prohibited the un- 
lawful assembling of Quakers ; had made it penal for 
any master of a vessel to bring a Quaker into the 
State ; had ordered those already here, and such as 
should come thereafter, to be imprisoned till they 
should abjure the country ; provided a milder punish- 
ment for their first and second return, but death for 
their third ; had inhibited all persons from suffering 
their meetings in or near their houses, entertaining 
them individually or disposing of books which sup- 
ported their tenets. The Anglicans ruled for a century, 
but the constitution of 1776 placed them on a level 
with other sects. 

This first popular Virginia government consisted of 
a Governor, Council, two legislative houses, and a 
judiciary appointed by the legislature, as were also the 
executive officers of the State. To insure the dignity 

* Bancroft, vol. ix., chap. 15. 
f Jefferson's Notes on Va, 



VIlMilMA. 21 

and fixedness of the senatorial body, Virginia, like 
Now York and Delaware, gave it permanence by re- 
newing, the first two, one-fourth, Delaware, one-third 
of its members annually. Thus the senators held 
Office for four years. 

* The provincial convention, elected in April, 1770, 
to continue in office one year, met at the capitol, Wil- 
liamsburg, on May 6th. On the 29th of June it set 
in operation the new constitution without any further 
consultation of the people. Thus did this revolution- 
ary assembly carry on the work of governing the people 
in the place of the old government. It also enacted 
legislative reforms of vital importance. In 1705, 
Virginia passed laws to strengthen the aristocratic 
system of entails, and in 1727 slaves were permit- 
ted to be attached to the soil and entailed with it. 
On the 12th of October, 1776, Jefferson obtained leave 
of this legislative convention to bring in a bill for the 
abolition of entails. By this bill, all donees in tail were 
vested with the absolute dominion of the property en- 
tailed. This step toward a more free distribution of 
property was followed by making the lands of an in- 
testate divisible by law equally among his representa- 
tives, which also was the work of Jefferson. 

Great names in the history of Virginia, not only 
adorned that State and gave her good government, 
but also shed lustre on national jurisprudence. 
Washington, Jefferson, Madison, Marshall — names 
that will grow brighter while men continue to adore 
the justice, stability and perpetuity of our government, 
state and national. 

* Jameson's Convention, §138. 



22 



28 



24 



OHAPTEE II. 



COLONIAL LEGISLATION. 



II. — PENNSYLVANIA AND ITS PROPRIETARY FORM OF 
GOVERNMENT. 



The constitutional history of Pennsylvania down to 
the year 1790, when its fundamental law assumed its 
present character, is interesting and instructive. Next 
in importance after the charter governments of Massa- 
chusetts, Rhode Island and Connecticut, comes the 
Proprietary governments of Pennsylvania, Maryland 
and Delaware. In the former, the people looked for 
liberty as guaranteed in their charters ; in the latter, 
the people depended upon the liberality and generosity 
of the Penns and the Baltimores for political and relig- 
ious freedom, and it proved to be a dependence not 
in vain, but so amply repaid that posterity is proud of 
those eminent proprietors. 

In 1682, William Penn landed in Chester, and se- 
cured, for the government of his province, the adoption 
of the constitution which he and Algernon Sydney, 
and other friends of Penn, had drawn up in England. 
William Penn was a man of strong sentiments and 
fixed opinions. He had suffered imprisonment and 
persecution for his religious belief, and in America he 
determined to found a State where persecution for 
opinion's sake should be unknown. 



26 COLONIAL LEGISLATION. 

Charles II. paid a debt of £15,000, which he owed 
Penn, on account of money loaned and services ren- 
dered to England by Sir William, the father of Wil- 
liam Penn, by deeding to the distinguished Quaker 
the Province of Pennsylvania. Penn, by deed from 
James II., then Duke of York, of the date of August 
24, 1682, secured a fee simple in the land, and by 
charter from Charles II., dated March 4, 1680, secured 
for himself, his heirs and assigns, the office of Gov- 
ernor, with almost the powers of an absolute monarch. 
By self-sacrifice and devotion to principle, Penn 
strove to found a free government, but brought upon 
himself wretchedness and poverty. 

The constitution drawn up by Penn in England 
lasted but a year, when delegates from various parts of 
the province, by powers granted to them by law, re- 
modeled it. 

The Council, which consisted of twelve from each of 
the six counties of the province, was changed to three 
from each county — one to be elected by the county 
each year to serve for three years. The Governor or 
his deputy presided in the Council, and had a "treble 
voice ;" but in 1683, his powers were defined so that 
he could perform no public act of state that might 
relate to the justice, trade, treasury or safety of the 
province^ but by and with the advice and consent of 
the Council. 

The Governor and Council proposed and executed 
all laws. The General Assembly had only power to 
concur or reject. 

By Penn's constitution, the Council was to be 
divided into committees to manage the general affairs 



1'KNN-VI.V ANIA. 27 

of the province, but in L683, tin- provision was substi- 
tuted that one-third of the Council, with the Governor, 
should have the management of public affaire relating 

to the peace, justice, treasury, education and sobriety 
of the province. 

The General Assembly was to consist of two hun- 
dred members and to be elected yearly, but in 1683 
the number was reduced to thirty-six, and in 1696 to 
twenty-four persons ; yet Penn, in his theoretical con- 
stitution, had provided that the first year the Gen- 
eral Assembly should consist of all the freemen of 
the province, and " that the number two hundred 
should be enlarged as the country should increase 
in people." 

Even in 1683, the provision was made that seventy- 
two in Council and two hundred in the Assembly 
were to be the highest number of legislators. 

Sheriffs, justices of the peace and coroners were ap- 
pointed yearly by the Governor, but the terms of ser- 
vices of judges, treasurers and masters of the rolls, 
were changed from a yearly to the duration of good 
behavior. The appointment of all such officers was 
with the Governor, upon the recommendation of Coun- 
cil or Assembly. 

The Assembly impeached, but the Council tried 
impeachments, and it was provided that the consent 
of the Governor, his heirs or assigns, and six-sevenths 
of the Council and Assembly, alone could alter or 
diminish the effect of the constitution, contrary to its 
true intent. 

In 1683, aliens received the privilege of natural- 
ized citizen- In regard to the transmission of their 



28 COLONIAL LEGISLATION. 

property, and Perm granted to all inhabitants of the 
province liberty to " foul and hunt upon the lands 
they hold, and in all other lands not inclosed, and 
to fish in all rivers," and assured to all the possession 
of lands which they held by any legal or equitable 
title — saving such rents as are due. 

In 1696,, some additional provisions were placed in 
the constitution, such as declaring the legislative bod- 
ies the sole judges of the elections of their respective 
members, limiting the ballot to citizens of two years' 
residence and of £50 clear estate, punishing bribery at 
elections, and fixing the pay of legislators; but the 
the constitution of 1683 was essentially the funda- 
mental law of Pennsylvania till 1776. 

In 1701, William Penn grants to his people a new 
charter of privileges, which the Assembly thankfully 
received from their Proprietor and Governor. In it, 
Penn speaks of how he is now pleased to restore to the 
people the constitution, which the Assembly, the year 
before, by six parts out of seven, was pleased to sur- 
render to him, as not fit for the government of Penn- 
sylvania, and he now grants "liberties, franchises and 
privileges." 

Freedom of conscience in religion is guaranteed to 
all who believe in one Almighty God, and all persons 
could serve the government in any capacity, if they 
professed a belief in Christ as the Saviour of the world. 
Criminals were allowed witnesses and counsel for 
their defense, and disputes about property were to be 
determined in court, and not in Council before the 
Governor. The property of one who had committed 
suicide, was made to descend as did that of one dying 



PENNSYLVANIA. 29 

I natural death, nor was a forfeiture to the (ioveruor 
BUT upon the death of one by misfortune or acci- 
dent. Youth were to be instructed at low prices, 
education having been esteemed of less value by the 
Quakers than by the people of Massachusetts, who re- 
quired a system of universal education.* 

Penn, for himself, his heirs and assigns, solemnly 
declared that neither he, his heirs or assigns, should 
procure or do anything whereby the liberties of the 
charter should be infringed. In accordance with his 
religious and political convictions, and to procure emi- 
grants to Pennsylvania, its Governor strove to make it 
free and attractive. 

In theory, the government of Pennsylvania was a 
constitutional monarchy, in which the Penns, their 
heirs and successors, represented the British sovereign 
and enjoyed his prerogatives, as far as the circum- 
stances of the country and the dispositions of its in- 
habitants would permit. A people who were poor, 
and who had to struggle with the obstacles of a new 
country, did not lavish money upon even popular 
rulers, and the democratic spirit of American immi- 
grants held government to be for the good of the 
governed. The Penn family was often in want, even 
with its vast domain and possessions. 

The Proprietary government ended with the adop- 
tion of the constitution of 1776. Its power ended be- 
fore that time. The revolt of the colony swept away 
all pow r er eminating from the British Throne, and the 
people became Sovereigns. Nor was the conflict 
which ended in the independence of Pennsylvania of 

*Bancroft, ix., p. 270. 



30 COLONIAL LEGISLATION. 

short duration. The Proprietor, or his deputy, and his 
Council, formed one party, and the Assembly, repre- 
senting the people, formed another. A perpetual 
strife existed between these parties ; the King on one 
side and the people on the other. The Proprietor 
had an absolute veto upon all legislation, almost every 
executive and judicial officer was the instrument of 
his creation, every freeholder his tenant ; a rental 
from the quit-rents formed a revenue for his deputies, 
which made them independent of the Assembly ; and 
he had millions of acres to dispose of as his interest 
or ambition might suggest. 

The Assembly, on the other hand, strove to get the 
disposition of the public revenues into its own hands 
or into the hands of officers of its own appointment. 
Such were the two parties of colonial history — the 
people on one side, the King on the other, and when 
the final conflict came, the Declaration of Independ- 
ance consummated the rule of the people. 

The Revolution also put an end to the reign of the 
Baltimores in Maryland, but their Proprietaryship 
dated back to 1632. For more than one hundred 
years, the family founded by George Calvert dictated 
the laws and policy of Maryland. The home for the 
persecuted Catholics of Europe, Maryland, to-day en- 
joys the envious distinction of having afforded a re- 
fuge to the persecuted, long before Protestants had 
adopted the political doctrine of entire toleration of 
every religious belief. 

The Baltimores had to contend against the religious 
hostility of their Protestant population, which rose at 
times to bloodshed and revolution ; and upon the acces- 



PENNSYLVANIA, .'II 

non of William and Mary, the Proprietaryship, with 

all its emoluments for twenty-six years, was taken 
from them. 

With the restoration of the fourth Lord Baltimore 
(1714) the Proprietary government continued down to 
the Revolution. As in Pennsylvania, the deputy of 
the Proprietor often governed the province, and the 
people complained of the absence of the ruler. Lib- 
eral, generous, able and competent, the Baltimores, 
advanced the interests of Maryland, as well as their 
own fortunes and renown. 

The Carol inas were also for sixty-six years (1663- 
subject to Proprietary government. Named 
after Charles II., who deeded them to a number of 
eminent men, they proved to be of little profit to their 
Proprietors, either by way of rents or offices ; and in 
hope that the turbulent subjects of the Lords Proprie- 
tors would yield a more submissive obedience to 
George First, the Lords, except Granville, sold their 
interests in those two colonies to the King.* 

For twenty-four years (1669-1693) the Proprietors 
put in operation the " Fundamental Constitutions of 
Carolina," drawn up by the philosopher, John Locke. 
Magnificent in design and labored in detail, it was 
one of those Eutopian schemes of government which 
seem wise in theory, but in practice fail to accomplish 
the good which is attained by adapting reforms as 
they are demanded by the growth of civilization and 
culture. 

Upon the failure of Proprietary government in 
Carolina, the territory was divided into two States, 

* John H. Wheeler's History of North Carolina, p. 41. 



32 COLONIAL LEGISLATION. 

the Santee river being the dividing line. The two 
colonies were then ruled by the Provincial form of 
government down to the time of the Revolution. 

On May 15, 1776, the Continental Congress recom- 
mended to the assemblies and conventions uf the United 
Colonies where no government sufficient to the exigen- 
cies of their affairs has been hitherto established, to 
adopt such government as shall, in the opinion of the 
representatives of the people, best conduce to the happi- 
ness and safety of their constituents in particular and 
America in general, recommending also the total 
suppression of all authority under the King of Great 
Britain. In two months, Pennsylvania had a conven- 
tion elected to form a new constitution on the author- 
ity of the people only — a convention in which Frank- 
lin presided, and which, based upon revolutionary 
principles, took the government of the province 
into its own hands. It had been chosen by recom- 
mendation of a conference of deputies from various 
parts of the province, who met upon the request of 
friends of the Revolution. This self-constituted con- 
ference enlarged the number of electors and prescrib- 
ed an oath of allegiance to the new government to be 
taken by all who were to be members of the new 
body politic, and thus in effect disfranchised the 
Quakers, who were averse to taking an oath. 

On the 24th of June, 1776, this provincial conven- 
tion or conference declared its willingness to concur 
in a vote of Congress declaring the United Colonies 
free and independent States. On the 28th of Septem- 
ber following, the new Constitution went into opera- 
tion. 



rENNsvi.vAxiA. 33 

The reaction against British rule drove the people 
to the opposite extreme in favor of popular govern- 
ment, and the supreme legislative power was vested in 
a single House of Representatives of the freemen of 
the State. Laws were to be enacted by the authority 
of the General Assembly alone. The executive 
power was vested in a President and Council, who ap- 
pointed judges and executive officers and tried im- 
peachments. Delegates to represent the State in Con- 
gress were elected by the General Assembly, and even 
the President and Vice President of the Common- 
wealth were to be elected out of the Council by a 
joint ballot of the twelve Councilmen and the General 
Assembly. 

The Bill of Rights was made the first article of the 
Constitution, and consisted of sixteen sections, wherein 
are laid down the fundamental principles of popular 
government. 

The last section of the Pennsylvania constitution of 
1776 provided for the election every seven years of a 
Council of Censors " to inquire whether the Constitu- 
tion has been preserved inviolate in every part and 
whether the legislative and executive branches of 
government have performed their duty, or assumed to 
themselves, or exercised other or greater powers than 
they are entitled to by the Constitution." Two-thirds 
of the Censors concurring, they could call a conven- 
tion to amend the Constitution. 

Thus, the attempt to change the Constitution could 
be made only once in seven years, which was contrary 
to the prevailing spirit of the times and the progressive 
disposition of the American people. In all the con- 



34 COLONIAL LEGISLATION. 

stitutions of the States, the people strove to retain 
what they deemed of value in English law and policy, 
but ever left the way open for improvement. The 
people refused to sleep for seven years, and the pro- 
vision for a Council of Censors was swept away. The 
Censors did meet in 1783 and 1784, but their proceed- 
ings were inharmonious and abortive, except that 
their debates exposed the illegal proceedings of the 
badly constituted government that preceded that of 
1790. 

When Pennsylvania came to form its second consti- 
tution, the Federal Constitution had been formed, the 
science of popular government had been more thor- 
oughly explored. Franklin's favorite notion of a 
single legislative body had lost favor and the proper 
structure for our State governments had become better 
realized. 

The custom, too, by which the State constitutions 
are properly formed, has now become almost a settled 
law.* The organized government provides by law 
for a vote of the people for or against a convention to 
form a new constitution. If the vote is in favor of a 
convention, then the people, by a law made for that 
purpose, vote for delegates to a convention to form a 
constitution. The constitution formed, is submitted 
to a popular vote, and if ratified by the people, be- 
comes, on a fixed day, the new fundamental law of 
the State. In Pennsylvania, the method of adopting 
the constitution of 1790 was peculiar. The conven- 
tion took upon itself to say how it should proceed. 
It " resolved, that in the opinion of this house, a con- 

* Jameson's Constitutional Convention. 



PENNSYLVANIA. 35 

vention being chosen and met, it would he expedient, 
just, and reasonable, that the convention should pub- 
lish their amendments and alterations for the consid- 
eration of the people, and adjourn at least four months 
previous to confirmation. " The convention made itself 
the people instead of following a law laid down by 
the government. The convention formed the Consti- 
tution and after an adjournment of a few months, as- 
sembled, and, amid the firing of guns and the ringing 
of bells, proclaimed the adoption of their Constitution. 
The people acquiesced, and thus made it law. Subse- 
quent changes (1837 and 1873) have improved and 
adorned the structure, as time and statesmanship have 
indicated the need of reform. 



36 



38 



CHAPTER ni. 



COLONIAL CHAKTERS. 



III. - MASSACHUSETTS, AND CHARTER GOVERNMENTS 
IN THE COLONIES. 



The colonization of America was attended with so 
many perils and hardships that it was attempted only 
upon the most flattering inducements, or as one of two 
deplorable evils — upon the prospects of empire or as a 
refuge from the religious persecutions of Europe. 

With the Reformation and the Revival of Letters, 
came independence of religious belief and the politi- 
cal doctrine that government is for the benefit of the 
governed, which were met by intolerant laws and the 
doctrine of the divine right of Kings. America af- 
forded a refuge for every one who held an opinion that 
was unpopular in Europe. 

The Quakers in Pennsylvania were foremost in favor 
of toleration, and indulged all religious views as long 
as men " confessed one God to be the Creator, upholder 
and ruler of the world, and that hold themselves 
obliged in conscience to live peaceably and justly in 
civil society." The Puritans in New England toler- 
ated only the religious opinions of their own sect ; 
yet they themselves were free from foreign interier- 
ence in their own worship. 



40 COLONIAL LEGISLATION. 

Our colonial history tells of progress both in civil 
and religious liberty. 

On the fourth of March, 1629, Charles I. granted to 
" the Governor and Company of the Massachusetts 
Bay, in New England," a charter, which continued for 
fifty-five years to govern the greatest of the New Eng- 
land colonies. It confirmed to the corporators the 
ownership of the land which now forms the greater 
part of Massachusetts ; it empowered them and their 
successors and associates forever to elect annually a 
Gorvenor and eighteen Assistants, and to make laws 
and ordinances not repugnant to the laws of England. 
It authorized the Company to admit new partners, to 
transport settlers, to encounter and repel enemies, and 
to constitute inferior officers as they should think 
proper for the ordering and managing of their af- 
fairs.f * 

This was a grant of the power of local self-govern- 
ment to the people of Massachusetts, and to preserve 
that power was the cardinal principle of Massachu- 
setts politics for one hundred and sixty years. 

The structure of the government of Massachusetts 
Bay did not continue as marked out in the charter of 
1629. At first, the Legislature consisted of one body, 
known as the General Court, which also acted as a 
supreme judicial court. In 1636, a dispute arose be- 
tween two persons about the ownership of a sow. The 
litigation that followed developed parties in the State, 
until in 1644 the Legislative body was divided into 
two chambers, consisting of Magistrates and Depu- 

f Hildreth, vol. ii., p. 68. 

* Palfrey's N. England, vol. i., p. 98. 



MASSACHUSETTS. 41 

etch having a veto against the vote of the other. 
Thus was a check found upon popular passion, and a 
permanent division made of the Legislative body. 

The Governor and Company of Massachusetts Bay 
had the power to exclude all persons from their terri- 
tory whose views upon any question did not meet their 
approval, and often was that power exercised. The 
freemen, who were the original governing body by the 
charter, determined that citizenship and the franchise 
should belong only to Christian men who were mem- 
bers of some of the churches in the colony. Nor 
could a church be established without permission 
from the civil power and the majority of existing 
churches.f 

X The next step in the body politic above the free- 
man was the town. The freemen of the towns chose 
Deputies to the General Court or Legislature, elected 
their own local officers, and made ordinances not re- 
pugnant to the laws of the General Court. In all New 
England to-day, while the suffrage is nearly universal, 
the towns still form the unit of their geographical and 
political system. With small variations, the local 
government of towns by the people thereof, as born in 

ichusetts Bay, has pervaded nearly every State in 
the Union. 

King Charles, after signing the charter of 1629, at- 
tempted to govern England without the aid of Parlia- 
ment, and also to take from the colonies their power of 
local self-government. A Commission was named to 

* Palfrey's N. England, vol. i., p. 258. 
f Palfrey, vol. i, p. 173. 
X Palfrey, p. 274. 



42 COLONIAL LEGISLATION. 

rule America. The people, in council at Boston, de- 
cided to resist the usurpation ; but Charles found that 
matters of greater importance, at home, demanded his 
attention, so the people continued to enjoy their char- 
ter through his reign. 

Up to 1640, Massachusetts had no code of written 
law. The powers of government were vested in the 
Governor, Assistants and the General Court, which 
consisted of the Deputies from the towns and the Ma- 
gistrates,* who in turn consisted of Governor, Deputy 
Governor and Assistants. When the General Court 
was not in session, the Magistrates were the supreme 
government or standing council of the Common- 
wealth.! Each freeman belonged to some town, and 
by his Deputy shared in the measures of expediency 
which they called laws. With the growth of the 
colony the demand for definite and well known laws 
called for a written code, and the authorities, who had 
been accustomed to rule as their whims dictated, were 
forced to recognize the laws of England to be in force 
in the colony, as far as they were consistent with its 
circumstances. 

Nathaniel Ward, of Ipswick, in 1641, drafted a code 
of laws styled, " The Body of Liberties," which the 
General Court adopted. Ward, who had been bred 
a lawyer and a divine, began his code by a Bill of 
Rights, made the number of capital offences only ten, 
and sustained the death penalty by references to scrip- 
ture. Attempts were made in all the New England 
colonies to regulate by law the prices of commodities 

* Palfrey, vol. i., p. 118. 
f Palfrey, vol. i., p. 318. 



MASSACHUSETTS, 4.S 

and of* labor, and men were forced to support the 
ministrations of religion and personally to attend upon 

them.* 

Down to the year 1686, all the charter governments 
of New England were very similar to that of Massa- 
chusetts. Elections of officers were held annually, 
the towns were governed by their own local magis- 
trates and were represented by deputies in a General 
Court or Legislature, suffrage was restricted to a 
chosen few, but taxes were imposed upon all who had 
property. The whole of New England was laid off 
into towns, which were bodies politic, managing their 
own local affairs. The local officers usually consisted 
of a Board of Selectmen, a Clerk, a Treasurer, a Sealer 
of Weights and Measures, Surveyors and Tithing- 
men, all of whom were elected by the freemen. 

The highest judicial and legislative body in Massa- 
chusetts was the General Court. Not until 1692, when 
Massachusetts received a new charter from William 
and Mary, was the Judicial power separated from the 
Legislative. The General Court alone possessed the 
pardoning power. Appeals lay from the Town Courts 
to the Inferior Courts, which consisted of five judges, 
and had jurisdiction in civil causes in the sum of £10, 
and in criminal causes, not concerning life, member or 
banishment.f Appeal then lay to the Court of Assis- 
tants, and from this to the General Court. There was 
no recognized method of appeal to any authority be- 
yond the sea. 

In all the colonies of New England, the Assistants, or 

* Palfrey, vol. i. t p. 283. 
t Palfrey, vol. i., p. 277. 



44 COLONIAL LEGISLATION. 

Magistrates, were also Justices of the Peace, and pro- 
fessional lawyers were not to be found. New Haven, 
which previous to 1662 was not a part of Connecticut, 
was guided in its government by the teachings of the 
Old Testament, and found no place for jury trials. In 
1664, Charles II. began a system of interference in the 
affairs of the New England colonies, which continued 
in various forms by the mother country for more than 
a century. At first, Commissioners were sent out in 
the interest of the King, " to lead and dispose the 
people to desire to renew their charters, and to make 
such alterations as should appear necessary for their 
own benefit." * 

The Commissioners found little difficulty, except in 
Massachusetts, in disposing the colonies to submit to 
laws contrary to what they had enacted for themselves. 
When attempting to act in Massachusetts, they were 
held as usurpers of authority which the charter of 
Massachusetts conferred upon the people thereof. 
Royalty never did consider Massachusetts devoted to 
the principles of arbitrary government. 

On the twenty-third of October, 1684, the Court of 
Chancery of England declared the charter of Massa- 
chusetts forfeited. The main charges upon which this 
judgment was founded were that the colony had pre- 
sumed to coin money, had not enforced the Act of 
Navigation, had passed laws contrary to those of Eng- 
land, and had purchased the Province of Maine from 
Gorges while Charles II. was negotiating for it. The 
dispute had lasted for many years, and as far back as 
1678, the General Court, in an address to the King, 

* Palfrey, vol. ii., p. 61, 



M VSSACHUSETTS. 43 

said: ■ ''The laws of England are bounded within 

the four seas, and do not reach America. The subject- 
of his Majesty here being not represented in Parlia- 
ment, BO we have not looked at ourselves to be impeded 
in our trade by them, nor yet we abated in out rela- 
tive allegiance to his Majesty. Laws repugnant to the 
laws of England they were willing to repeal with all 
convenient speed — except such as the repealing where- 
of would make them to renounce the professed cause 
of their first coming." Thus, nearly a century before 
the Declaration of Independence, the people of Mas- 
sachusetts maintained their rights of local self-govern- 
ment, and denied the absolute power of Parliament. 

With the abrogation of the charter, every right, 
privilege and immunity which had been founded on it, 
-wept away. Massachusetts was a conquered 
province, in which " His Majesty's Lieutenant and 
Governor-General " was made the sole ruler, with no 
power to restrain him but the King. 

Upon the accession of James II., in February, 1685, 
a Commission was formed to govern New England, 
-ting of a President, Deputy President and six- 
teen Councilors, whose authority was to extend over 
ichusetts, New Hampshire, Maine and King's 
Province, which lay between Rhode Island and Con- 
necticut. No Assembly was provided for, and the 
powers of this new government were only executive 
and judicial. Soon Sir Edmond Andros was sent over 
to govern New England, and empowered to make 
laws with the consent of his Council, which were to 



Palfrey, vol. ii., p. 2:24. 



46 COLONIAL LEGISLATION. 

conform to the laws of England, and to be sent to 
England for the royal sanction. 

New England, as a royal province under Andros, 
was an anomaly in American history. For nearly 
three years arbitrary power reigned; a ruler, unre- 
strained by law ; land titles declared void, and estates 
given away, as the caprice of the tyrant dictated ; taxes 
imposed by order of the satrap of King James IT., and 
personal liberty held only by permission of the Gov- 
ernor. 

Upon the accession of William and Mary, the charter 
governments were revived. By the labors of In- 
crease Mather and ethers, a new charter for Massa- 
chusetts Bay was granted, giving the King power to 
appoint a Governor, Lieutenant-Governor and Secre- 
tary, and making other important changes in the gov- 
ernment.* The Legislature, or General Court, now 
consisted of a House of Representatives, chosen by the 
towns, and a Council of twenty-eight members, chosen 
by the General Court, but subject to the Governor's re- 
jection. Plymouth colony and Maine were now an- 
nexed to Massachusetts, and given representatives in 
the General Court. The Governor had a veto on bills, 
and even three years after his approval, the King 
might annul the laws. The Governor was commander- 
in-chief of the militia, and appointed military offi- 
cers. With the consent of the Council, he appointed 
judges and all officers connected with the courts.f 

Courts of Admiralty were constituted by the Crown 
to look after the execution of acts in reference to Brit- 



* Palfrey, vol. iii., p. 67. 
f Palfrey, vol. iii., p. 72. 



MASSACHUSETTS. 47 

isfa commerce, and Probate Courts were established by 

the Governor in Council. Instead of a committee of 
the Privy Council, " The Lords' Commissioners for 
Trade and Plantations" now constituted the power 
behind the throne, to dictate the commercial policy of 
England toward the colonies. The colonial Govern- 
or- were now required to swear that they would use 
their utmost diligence to make the navigation or com- 
mercial laws effective. Parliament even struck at 
American manufactures, by forbidding their exportation 
out of the province. The power to rule commerce 
being secured to England, the other powers of govern- 
ment were held chiefly by the General Court. 

By this Charter of William and Mary the qualifi- 
cations of voters were changed from a basis of church 
membership to one of property, liberty of worship 
was secured to all Protestants, and in some civil causes 
appeals might be made to the King in Council. Such 
was the government of Massachusetts from the English 
Revolution down to the American — nearly ninety 
years. 

The General Court consisted of a house of Repre- 
sentatives and twenty-eight Councilors, who sat in a 
separate chamber, except when officers were nomin- 
ated in joint ballot. It alone had the power to levy 
taxes ; yet the power of the crown was, in many par- 
ticulars, greater than it had been under the old char- 
ter. While the Representatives were elected by the 
towns, the Councilors were nominated yearly by the 
two houses in joint session and approved by the Gov- 
ernor. Thus the friends of prerogative were 
found in the upper house. The power of the execu- 



48 COLONIAL LEGISLATION. 

tive to dissolve the General Court before the expira- 
tion of the official year, was a royal prerogative very 
different from any possessed by the Governors elected 
under the old charter. 

A conflict arose between the lower house, or the 
Duputies, and Joseph Dudley, the Governor appointed 
by Queen Anne, in which the Governor demanded, in 
vain, of the Legislature to settle upon his office a fixed 
salary. Subsequent Governors also failed to secure 
for themselves and other high officials appointed by 
the Crown, a fixed salary, but were compelled to de- 
pend for compensation upon the good will of the tax- 
ing power. 

The House of Kepresentatives came in conflict with 
the Governor and Council upon many questions. 
While the Governor had a veto upon the laws, the 
house refused to vote supplies unless its demands were 
allowed ; thus the functions of the executive depart- 
ment were invaded and its independence crippled. 
While the King's officers demanded compliance with 
the King's wish that the province should build a fort 
at Pemaquid to protect the settlements in Maine, and 
establish salaries for the Governor, Lieutenant Gov- 
ernor and judges; the province refused the royal re- 
quests. The Court clung to its sole power to tax the 
people of the province and to control the money 
raised by taxation, while the mother country strove 
to strengthen the dependence of the colony upon the 
Crown. 

In Parliament a bill was projected to vacate the 
charters of the colonies which called forth Jeremiah 
Drummer's Defence of the American Charters, in 



ICA88ACHU8ETT8. 49 

which their sacred character as contracts with the 
Crown was upheld and in which the liberties of the 
colonies were held to be compatible with the prosperity 
of the Crown. The vehement disputes over the ques- 
tion of a fixed salary for the Governor, occasioned 
threats by the royal agent of an attack upon the char- 
ter by Parliament, as well as charges of disloyalty 
against the colony; but the House relied upon its 
powers under the charter and maintained the rights 
and privileges of Englishmen. 

On the 8th of November, 1760, Wra. Pitt sent 
stringent orders to revenue officers in America to 
break up the contraband trade carried on with the 
French and Spaniards with whom England was at 
war. In Boston, writs of assistance, which authorized 
custom-house officers, " in the day time, to enter and 
go into any house, shop, cellar, warehouse or room 
or any other place, and in case of resistance to break 
open doors, chests, trunks and other packages, to sieze 
and from thence bring any kind of goods or mer- 
chandise prohibited and uncustomed, and to secure the 
same in his Majesty's warehouse."* James Ottis de- 
nied the power to grant any such writ, even by Par- 
liament itself. The courts declared writs of assistance 
legal and the conflict between the government and 
the popular party in Boston went on. The House 
declared that if it should give up the right to originate 
all taxes, the province would then be under the rule of 
an arbitrary despotism.! 

* Palfrey, vol. iv., p. 308. 
t Palfrey, yoI. iv., p. 320. 



50 COLONIAL LEGISLATION. 

The denial of the power of Parliament to tax the 
colonies followed as a corollary to the right of the 
House of Kepresentatives alone to tax the people of 
Massachusetts, and the dispute concerning duties, 
taxes and stamps upon paper, forms the prelude to the 
drama of the Eevolution. 

The organized force which carries a State through a 
revolution is of small value in the study of constitu- 
tional systems. It is difficult to describe the govern- 
ments of the colonies during the Eevolution except 
by detail. The Republican spirit of the times weak- 
ened the power of the executive and strengthened the 
legislative departments. It was the House that came 
from the people, that resisted the royal Governor. 
The governments were made to conform to the popular 
will. The people formed their own charters, local 
self-government prevailed. 

The resolutions of the Continental Congress were 
the most authoritative expressions of the people's 
voice. Congress had been frequently requested by the 
colonies in revolt, to give its advice and direction in 
relation to the establishment of civil government 
where the royal governments had been driven 
out. On the 3d and 4th of November, 
1775, Congress advised the colonial govern- 
ments * " to call a full and free representation of the 
people in order to form such a form of government as 
in their judgment would best promote the happiness 
of the people, and most effectually secure peace and 
good order in their provinces during the continuance 
of the dispute with Great Britain. " 
* Jameson's Constitutional Convention ,§ 127. 



MASSACHUSETTS. 51 

This was followed by the resolution of May 10th, 
177(>, "that it be recommended to the several Assem- 
blies and conventions of the United Colonies where 
no government sufficient to the exigencies of their 
affairs hath been hitherto established, to adopt such 
government as shall in the opinion of the representa- 
tives of the people best conduce to the happiness and 
safety of their constituents in particular and America 
in general/' " This resolution," said John Adams, 
"was independence." The colonies now began the 
work of substituting regularly constituted govern- 
ments for the Committee of Safety and other tempo- 
rary powers that assumed the reins of government 
during the violence of Revolution. 

Up to the time of the formation of our Federal 
constitution in 1787, the systems of government both 
State and National, were somewhat experimental. The 
statesmen of a century ago studied the problems of 
government, both by experiment and the teachings of 
history. 

Improvements in State governments followed each 
other in quick succession, and our Federal govern- 
ment rose from the ashes of the Continental Congress 
and the Confederation. 

In 1780, New York devised the method of a condi- 
tional veto by a Council, of which the Governor 
formed one. Massachusetts followed, placing a con- 
ditional veto in the hands of the Governor. The 
republican spirit of the early days of the Republic 
weakened the hands of the executive officer. 
Anarchy had become preferable to kingly rule. The 
legislative branch became the center of the systems. 



52 COLONIAL LEGISLATION. 

Nowhere had the Governor of a colony power to 
dissolve the legislature, or either hranch of it, and so 
appeal directly to the people. The Governor, how- 
ever, could not be removed during his term of office 
except by impeachment.* 

In September, 1779, a Convention, which the people 
authorized, framed for Massachusetts a Constitution. 
It was chiefly the work of John Adams, who took for 
his guide the English Constitution, the Bill of Eights 
of Virginia, and the experience of Massachusetts and 
other colonies. Adopted by the people, it continued 
to be the fundamental law of the State for forty-one 
years, a model system of government by the people 
and for the people. 

* Bancroft's U. S. History, vol. 9, p. 268. 



53 



54 



55 



56 



CHAPTER IV. 



IV — THE VNION AND THE GROWTH OF A NATIONAL 
SENTIMENT. 



The colonies that settled along the eastern shore of 
North America were at first united to their mother 
countries by various ties. Nearly all English, they 
clung to British laws and institutions. The Dutch in 
New York, the Swedes in Delaware, and the French 
of Canada, yielded to the invading progress of the 
Anglo-Saxon race ; while the vigorous life of British 
institutions over-shadowed and absorbed whatever be- 
longed to other European lands. 

AVith the growth of the colonies new interests 
sprung up. American commerce, wearied of being a 
a child to be tutored by English laws, the old right of 
local self-government was infringed and numerous 
wrongs aroused the spirit of independence. 

The Indians, who harrassed the growing colonies, 
were a common enemy to be met and conquered by 
colonial troops, while the enmities of England and 
France made the West a prey to European faction. 
Accustomed to local self-government, each colony for 
itself had struggled against the hardships of an un- 
broken wilderness, a savage enemy, a jealous mother 
country, and rivals on all sides, by sea and by land. — 
Thus, upon the Atlantic's western shore, grew up a 
hardy race, schooled in the principles of English 



58 THE UNION. 

liberty, proud of the vast domain within its possession, 
confident of the grandeur of its future, and not a class 
of men to submit to foreign oppression ; hence came 
the Ee volution of 1776. 

For common defence, a union of the colonies was 
necessary, but it was at first a union of necessity, and 
not of choice. Local jealousy, colonial pride, selfish 
independence crippled and weakened the Kevolution- 
ary army and prolonged the struggle for independence 

A scheme of union had been formed in 1643 by 
four colonies ; in 1754, by seven ; in 1765, by nine ; 
in 1774, by twelve; in 1775, by the thirteen colonies, 
and in 1781 the union had assumed the name of a 
Confederation, but they had been reluctant unions. 

The Continental Congress represented the broken 
disjointed parts of what was destined to be one nation. 
It was an assembly of ambassadors from the States 
which obeyed its requisitions on account of the com- 
mon danger from the invading enemy. 

The war, by the aid of France, successfully ended, 
then the necessity for union was not so imperative, 
and discord and disunion prevailed. 

As early as 1781 the Articles of Confederation 
were adopted, forming "a perpetual union" of the States, 
but giving to the general government only power to 
make requsitions on the States for the money needed 
to carry on the government. 

The Confederation was not a union of "the people" 
but of the colonies, the States. The people of the 
colonial corporations, or thirteen original States, grew 
up with a love for their own local laws and institu- 
tions, and a jealousy of all foreign dominion. The 



\ it Of a NATIONAL SENTIMENT. 

hostility toward Britain was changed to dread of 

;il rule, and every power given to the general 

rnmenl was delegated as a necessity for common 

,<1 general welfare. 
The States struggled to withhold power both from 
the genera] government and from each other. For 
seven years the Confederation survived, but proved 
weak and inefficient. 

Commercial discord had arisen among the States, 
armed rebellion had appeared in Massachusetts, for- 
xediton had become urgent, paper money carried 
haTOC among the nation's finances, treaties had been 
violated, and good men feared that independence 
would prove a curse instead of a blessing. 

The suffering of the commercial interests of the 
country demanded reform, more power for the gen- 
eral government, and a more perfect union of the 
tea. 

The present Constitution superseded the Articles of 
Confederation, but its adoption was secured only by a 
hard struggle against the jealous independence of the 
It took the entreaties of Washington, the 
logic of * Hamilton, Madison and Jay, the eloquent 
words of many a noble soul, and the indulgent yield- 
ings of many a firm patriot to procure the adoption of 
the Constitution of 1787. 

Tin >ved to cling to what power they pos- 

1, were jealous of its abuse in other hands than 

their own, feared tor their rights, if united with others 

- and laws were different. It was hard 

to get the States to delegate to the Confederation even 

• See the " Federalist." 



60 THE UNION. 

its slender powers, harder to prevail upon the conven- 
tions of the people to adopt the present Constitution. 

The debates * in the Federal Convention of 1787, 
which formed the Constitution, and in the State Con- 
ventions, which adopted it, show how the friends of 
local self-government strove to withhold power from 
the general government. 

The Federalists, as a party, embracing many of the 
truest men who ever served their country, desired a 
strong national government ; the Democracy trembled 
at every power given to the general government or 
every prohibition placed upon the States. 

"The Constitution," said Washington, "is the re- 
sult of a spirit of amity, of deference, of mutual con- 
cessions that our situation imperatively demanded." 

It is the merit of the Constitution, f says Labou- 
laye, that it was made by mutual sacrifices. No per- 
son said it was I who made it, each said I have carried 
such a clause, yielded on such another one. It was 
the common work of the greatest minds and best 
patriots of America. The Constitution formed, it was 
found to entirely please no one, but that was not a 
proof that it had no value. A constitution is not a 
work that a man creates by a stroke of his pen. It is 
a compromise between various interests, and every 
compromise is a mutual sacrifice. 

The Constitution formed and half accepted by Con- 
gress, thirteen different States had yet to accept it. It 
had to be discussed and dissected thirteen times in thir- 
teen States, having different ideas, interests and jeal- 

* Elliott's Debates, five vols, 
f Historic des Etats Unis, vol. iii. 



LOWTH OF A NATIONAL SENTIMK.VT. 61 

- to be vanquished, and by the force of reason to 
maintain harmony between all the citizens. 

Borne good men could not assent to the adoption of 
the Constitution because of the strength of the union 
thereby formed. * "So destructive," said Luther 
Martin, "do I consider the Constitution to the happi- 
ness of my country, I would cheerfully sacrifice that 
share of property with which Heaven has blessed a 
life of industry, I would reduce myself to indigence 
and poverty, and those who are dearer to me than my 
own existence I would intrust to the care and protec- 
tion of that Providence who hath so kindly protected 
myself — if, on those terms only, I could procure my 
country to reject those chains which are forged 
for it." Mason exerted all the powers of his great 
mind and Patrick Henry his matchless eloquence to 
defeat the Constitution in Virginia, but in vain. 

What are some of the compromises in the Constitu- 
tion which procured its adoption ? 

They were made between the small and the large 
s, those of the South and those of the North, be- 
tween men who saw nothing but tyranny and despot- 
ism in a strong national government, and men who 
saw anarchy, confusion, and perpetual war in a mere 
Federal Republic, and who pointed to the Confedera- 
tion as an example of a Federal system which was 
falling to pieces by its own weight. 

The first great compromise was in the construction 
of the Sen 

The House of Representatives is composed of 
members, chosen every second year by the people of 

* Elliott's Debates, i., p. 389. 



62 THE UNION. 

the States, the more populous States sending more 
members — while in the Senate the States are equally 
represented. Under the articles of Confederation, the 
single Congressional body voted by States ; thus the 
smallest State had as much authority as the largest. In 
the Federal Convention, the small States asked to have 
their power continued, but the larger States objected 
to the rule of a minority. The debate on the con- 
struction of the Senate and manner of voting therein 
was violent, and threatened the dissolution of the 
Convention. The Senate was finally organized to 
represent the equal political capacity of the States, the 
House representing the populace. The choice of the 
Senators was given to the legislatures of the States 
whose embassadors they are. 

The Northern States differed from the Southern 
chiefly concerning the regulations about exports, navi- 
gation and slavery. 

The South was an agricultural region, its wealth 
consisted in plantations and fruitful fields, producing 
cotton, sugar, rice, and tobacco, which were ex- 
ported and exchanged for manufactures of other 
countries. The North combined agriculture, com- 
merce and manufactures. To tax exports was to add 
to the cost of Southern products while the North, 
exporting little, would not feel the burden. 

Both sections, importing goods, submitted to a duty 
on imports, yet the North in this had an advantage, 
since imposts helped the home manufacturer by rais- 
ing the price of the article imported. A uniform 
duty upon articles used only in the South, must be all 

* Elliott's Debates, yoI. v. 



LOU in OF A M LTION \ i. BEN i I M i:nt. 63 

paid by the South, and a duty <>n Northern imports, 

l>v the North. This was B sourer of strife in the Con- 
vention, hut the South yielded mainly on account of 
Concessions to slavery. 

The difficulty of laying impartial imposts has 
always been felt, and in 1832 the dispute on this sub- 
ject threatened the dissolution of the Union. Interest 
supplied the desire, and the belief in the existence of 
a mere Federal compact from which a State might 
withdraw, prompted South Carolina to attempt to 
nullify a fiscal law of Congress. General Jackson was 
not the man to fail to execute the laws and force in- 
timidated Rebellion. The compromise of Clay 
pacified the discordant elements of 1832, and the 
taxing powers of Congress have since been peaceably 
exercised. 

The need of authority to control foreign commerce 
was the greatest impulse to the formation of a national 
union, yet the South believed free trade to be for its 
interest and yielded the power to regulate commerce 
in exchange for protection to slavery and the slave 
trade. The importation of slaves was not to be pro- 
hibited before 1808, and fugitives from labor were to 
be returned. To the qualified voters of the slave 
- were added three-fifths of the slaves, who, 
although property, increased the number of Represen- 
tatives from the South. The amount of direct taxes 
vras increased for the South by this increase of repre- 
sentation, but direct taxes, that is capitation or land 
. have seldom been imposed. 

The Constitution finally having been adopted, went 
into full operation in all its departments on April 30, 



64 THE UNION. 

1789. Soon twelve amendments were added to it, and 
the Judiciary having, by act of Congress, been organ- 
ized, was called upon to construe the powers vested in 
the government. Two methods of construction have 
been advocated. 

The friends of strict construction and State rights 
held the union to be a mere compact of sovereign 
States which could resume at will the functions which 
they have delegated to the Federal government. 

The friends of liberal construction have maintained 
that the union of the States is an indissoluble nation 
— sovereign in all those functions which the people 
have delegated to it. 

For seventy years the dispute went on. At times 
the union was on the verge of dissolution. In 1802, 
Fisher Ames stood up in the House of Kepresenta- 
tives to speak on the Jay treaty. He was a Federalist 
firm and true. He had seen the nation struggle 
through years of imbecility and now he sees it trem- 
bling to apparent dissolution on account of difference 
of opinion about a foreign treaty. With trembling 
voice and broken health, the feeble patriot closed his 
remarks with these words : fl If the vote should pass 
refusing to make laws necessary to carry into effect the 
treaty, and a spirit should rise, as it will, with the 
public disorders, to make ' confusion worse confound- 
ed,' even I, slender and almost broken as my hold 
upon life is, may outlive the government and Consti- 
tution of my country."* 

New England was jealous of the preponderating 
influence of the West and South, and believed the 



* F. Ames' Works. 



&BOWTB OF A XATinN.vi, h viimkxt. 65 

purchase of Louisiana to be unconstitutional and the 
war of 1812 a mere party measure of the Democrats. 
In the Hartford Convention of 1814, the war meas- 
of the government were denounced as destructive 
of the rights and interests of the people, and New 
England was united in demanding more restrictions up- 
on the general government. AVhen the question came 
up in Congress upon the admission of Louisiana into 
the Union, Mr. Josiah Quincy, of Massachusetts, gave 
aaioD to the sentiments of more than himself 
when he said : " It is my deliberate opinion that if 
this bill passes, the bonds of the union are virtually 
ved ; that the States which compose it are free 
from their moral obligations, and that, as it will be 
the right of all, so it will be the duty of some, 
definitely to prepare for separation, amicably if (hey 
can, violently if they must" Here was secession from 
ichusetts. 

There is no doubt, however, that finally the war of 
1812 united the nation more firmly by the vindication 
of its independence. In 1832, Calhoun and his friends 
felt that it was for the interest of the South not to 
remain in the Union, but the compromise measures of 
Clay retarded the " irrepressible conflict " between the 
North and the South. 

The institution of slavery was, from the foundation 
of the government, an object of jealous care to the 
South, but a subject for lamentation, and often tirade 
and abuse by the people of the North. 

The Souih asked favors for slavery in the Constitu- 
tion and received them, demanded national laws for 
it- protection and received them, finally secession was 



(56 THE UNION. 

the only way that might save slavery, and the South 
seceded. Secession was claimed as a right under the 
Constitution, and the court of arms was appealed to in 
maintenance of that right. The war settled the right 
of any State to secede, but how did it settle it ? It did 
not take away the right of revolution, which is as 
sacred as the personal right of self-defence, 
which no law can take away. " Whenever 
any lorm of government," says the Declaration 
of Independence, " becomes destructive of the ends 
for which it is instituted among men, it is the right of 
the people to alter or abolish it and institute a new gov- 
ernment.' ' In the long debate and final contest- against 
secession, this right was never denied or affected. 
The right of [Revolution is sacred, and by no laws or 
institutions can it be taken away. 

The State Rights controversy had been long and 
bitter, it ended bloody and disastrous to the disciples 
of Mason, Randolph and Calhoun, fatal to slavery 
which ever added fuel to the intellectual combat, and 
passion to popular agitation. 

The war over, the nation had felt the shock to its 
foundation. Inter anna leges silent. Every nerve had 
been strained to its utmost for national salvation, and 
like an athlete, victorious from the contest, the nation 
felt the strength of triple brass in its sinews and 
assumed all the powers and prerogatives to which, by 
the law of nations, it was entitled. 

When Mr. Stevens, in Congress, declared that they 
were passing laws outside of the Constitution and 
regardless of it, he gave expression to the national 



m in OF \ \ a i [ON M BEN i imi ni. 

g\e that was determined to preserve the Onion 

ami the lift of the nation. 

When Mr. Hoar offered a hill in Congress to place 

all the school- in the land under national supervi>ion, 
he seemed to think that the boundary lines of the 
States had faded before the nation's new vigorous life, 
and that the States had become mere provinces of a 
fast empire whose chief was at Washington, and 
diers were in every city of the nation. 

The national spirit and strength that carried on the 
war for the Union and triumphed in legislation, also 
us the Thirteenth, Fourteenth and Fifteenth 
amendments. 

The Constitution and twelve of the amendments 
were the fruits of peaceable deliberation. The time 
came when compromises could no longer settle the 
difficulties between the North and South. 

The "irrepressible conflict" went on and to arms 
was the last resort. Then came the three amendments 
that have in them no elements of compromise or 
accommodation. Bold, sweeping, comprehensive, im- 
partial ; they embody the fruits of the conflict, are 
he-tile to rebellion and destructive to slavery. State 
a no longer cherished and slavery no longer 
defended, but these elements of discord .-wept away 
and the omnipotence of Congress held in check by 
almost nothing but the restraint of the powers of the 
Supreme Court. 

With a liberal construction of the Fourteenth 
amendment to the Constitution, we might have the 
Federal courts adjudicating local affairs, and might 
soun lament because the nation's victory was a victory 



OS THE UNION. 

over ourselves, and Congress in legislating for the 
enemy had swept away our local independence. 

Fortunately the Supreme Court applies the new 
amendments to secure justice to the negro, and thus 
the national government is restrained toward the ends 
for which it was at first instituted. 

It is too soon to describe the workings of the new 
amendments and prediction may be useless, but it is 
certain that the importance of the States has faded 
before the might of the nation, and unless the people 
keep a jealous guard over the paladium of local 
independence in affairs which have not been given up 
to be managed by the general government, we may 
some day deplore the omnipotence of Congress and 
the despotism of Federal power. 

The sad pictures of the opponents of a centralized 
bureauocratic nationality are drawn after contemplat- 
ing the social, moral and political degradation of a 
despotic government. The laws under which a nation 
lives are the result of national character, but they, in 
turn, mold or influence the entire social system. 

With the destruction of local independence, with 
the loss of government by the people, comes an abject 
dependence on government, which has been well 
called an accursed inheritance from the days of the 
divine right of kings* 

No man who loves republicanism or takes an in- 
terest in the cause of humanity, can look with uncon- 
cern upon the general government doing anything 
which the individual or the locality can do as well. 



* Pres. C. W. Eliot's Address on a National University, Aug., 
1873. 



GBOWTB (>F A NATIONAL SKNTIM BUT. 69 

Self-reliance preserves liberty, union only gives 
gth, 

The ties then that should bind the nation together 
iT€ not stringent laws or standing armies, but a noble 
history in which all have a common pride, similar 
laws and institutions derived from a common British 
source, a commerce that unites our people into one 
great commercial city, every day drawn closer and 
. a true patriotism that desires to do equity to all 
sections of the country, and advance the true interests 
of all. 

We are justly proud of the Union and we glory in 
the strength of the nation, but let us ever be vigilant 
and jealous of the rights of individuals and localities, 
hostile to every act of injustice to any man, then we 
shall do our part toward making national unity a 
blessing and not a curse. 



70 



71 



72 



CHAPTER V. 



V. — THE TRIPARTITE DIVISION OF THE POWERS OF 
GOVERNMENT. 



u The fundamental constitution of the English gov- 
ernment," says Montesquieu, "is that the legislative 
. being composed of two parts, one checks the 
other, and both are checked by the executive power, 
which in turn is also checked by the legislature. " 
"There is no liberty," he continues, "if the power of 
judging be not separated from the legislative and 
executive powers." * 

u The tripartite division of powers," says Laboulaye, 

vowed in all the constitutions of the last eighty 

years. An essential element of liberty is that the 

legislative, executive and judicial powers should be 

rated.' 1 f 

In the individual, the judicial or deliberative fac- 
ulty generally acts previous to the legislative or rule 
determining faculty ; then, when plans are matured 
and laid out, the execution of them follows. This 
separation or analysis of individual action, however, 
work of subsequent observation, of no very im- 
portant aid to the individual. On the contrary, it is 
to most persons such a discovery as was that of the 



* " Spirit of Laws," vol. i., book xi., ch. 6. 

t Constitution of U. S., in Ilistoire des Flats Unis, vol. iii., 



74 THE TRIPARTITE DIVISION. 

man who had learned with surprise that he had 
been speaking prose all his life without knowing it. 

As these three faculties united in the individual 
may form a noble, generous man, so a despot, exercis- 
ing the three departments of government, might be an 
excellent ruler. " But nothing," says Laboulaye, " is 
such a corrupter as power." History has shown the 
need of dividing power, so as to restrain its corrupt 
use. Montesquieu, in his famous chapter on the Eng- 
lish constitution, written 1748, was the first French- 
man who pointed out the importance of this separa- 
tion and its value to English liberty. " If the same 
individual," says he, " can make the laws as a dele- 
gate of the nation, apply them as judge, and execute 
them as sovereign, then this man is a despot, and all 
is lost." * 

What more perfect definition of despotism can we 
have than that it is sovereignty concentrated into a 
single hand ? A despot is a man who does everything 
without rendering an account to any one. f 

Blackstone and Paley recognized the truth of Mon- 
tesquieu's observation, and in the United States it has 
been a universally accepted doctrine that the separa- 
tion of the three powers is essential to liberty. Still, 
this theory of the tripartite division of powers is not 
carried out strictly in practice. 

In England, the King forms a part of Parliament, no 
law being made without his approval. The veto of 
the King has not been exercised since the reign of 
Queen Anne ; still, through the Prime Minister, the 

* Spirit of Laws, vol. i., bk. xi., ch. 6. 
f Laboulaye, vol. iii., p. 289. 



I'mw BBS OF QOVERNMEB I • •■> 

ill receive the approval of the King or Queen. 
Parliament controls the administration, by compelling 
it to resign unless it agrees with a majority of the 
Commons, but the Prime Minister has hi* scat in the 
House of Commons, and is heard on every important 
sure. 

The Commons impeach, ami the Lords sit in judg- 
ment upon the acts of high officers of government, and 
English judges proclaim that to be law which never 
ived the approval of the legislature. 

With us, too, the three departments are blended. 
suspensive veto * of the President gives him leg- 
islative power, and the precedents of our courts are 
our laws. The Senate, too, is part of our executive 
r, since its consent is necessary in the appoint- 
ment of many executive officers. 

Thus, we Bee that political theories are not to be 
treated as mathematical axioms. The beneficial sepa- 
ration of the three powers, consists really in each 
having its province, but not in each being isolated. 
rate, but each a check on the other. The Presi- 
dent, with his veto, restrains Congress, which, in turn, 
can impeach the President, and the Judiciary can 
make void the illegal work of the other two powers ; 
the .Judiciary, in turn, liable to impeachment. 

The tripartite division of the powers of government, 
then, is observed to be of some value, and is a separa- 
tion that consists in not placing the legislative, ex- 
ecutive and judicial powers all in the same hands; 
while this ought not to hinder the executive from 
taking a part in legislation, the latter from influenc- 

. 7. 



76 THE TRIPARTITE DIVISION. 

ing the former, or the Judiciary from supplying the 
needed sufficiency of the laws, and by its sheriff or 
marshal executing these laws, as does the President 
execute the laws of Congress. 

Indeed, the absolute separation of the departments 
creates a war among them in order that each may 
teep its proper place. The uncontrolled acts of either 
power may end in despotism. 

" The efficient secret of the English Constitution," 
says Baghot,* " may be described as the close union, 
the nearly complete fusion of the legislative and ex- 
ecutive powers. " No doubt," continues he, u by the 
traditional theory, as it exists in the books, the good- 
ness of our constitution consists in the entire separa- 
tion of the legislative and executive authorities, but 
in truth its merit consists in their singular approxi- 
mation. The connecting link is the Cabinet, a com- 
mittee of the legislative body selected to be the execu- 
tive body." 

Whether the traditional theory, as it exists in the 
books, attributes the goodness of the English Constitu- 
tion to the entire separation of the legislative and ex- 
ecutive authorities, I do no not pretend to say, but it 
is certain that Blackstone,f a century ago, said : " The 
total union of the legislative and executive powers 
would be productive of tyranny ; the total disjunction 
of them would, in the end, produce the same effect, by 
causing that union against which it seems to provide." 
*' The true excellence of the English Constitution con- 



* Eng. Const., p. 76. 
t Com., vol. i., p. 154. 



TOWERS OF GOVERNMENT. 77 

sists in tliis, that all the parts of it form a mutual 
check upon each other." 

Our Constitution is modeled after that of England, 
and Blackstone described the institutions of England 
in our fathers knew them. George III. assumed and 
ised far more power than is used by Victoria, and 
the growth of the power of the Commons has adapted 
the English Constitution to the progress of the demo- 
cratic spirit, while the Reform Bills of '32 and '67 have 
enabled the Commons to represent the people and not 
merely boroughs. The executive power is no longer 
the King or Queen, but in fact the Cabinet, which is as 
truly elective as is our President, but elected by the 
Commons. 

The powers of our President are very like those of 
George III., whose separation from the two houses of 
Parliament and independence of them, led him to do 
more than merely obey the majority of the House of 
Commons. 

While the President has a suspensive veto, and 
must not execute a law passed during his administra- 
tion, unless two thirds of both houses of Congress 
Compel him, the English Prime Minister must procure 
a majority in the Commons or he is suspended him- 
self. True, if the people will support his measures, 
he may safely appeal to the ballot for a new Parlia- 
ment, but the majority of the Commons makes the 
laws and executes them by its own leader. Legisla- 
in the name of the people, seek their own 
aggrandizement. The Commons of England have be- 
come almost absolute, and may also become tyrannical, 



78 THE TRIPARTITE DIVISION. 

as may our Congress, if the President ever abandons his 
veto power. 

The separation of the legislative and judicial pow- 
ers is very important in our system of laws, since it 
may be the sworn duty of our judges to make void 
the act of the legislature, by not obeying the require- 
ments of its enactments. 

Our Constitution being our highest law ruling the 
three departments of government, prescribing the 
powers and jurisdiction of each, it becomes of the 
highest importance to have a power to keep all the 
others within their spheres. This King, as it were, 
of our Federal system, is the Supreme Court, which, 
while performing its duty, knows no master except 
the Constitution and the sovereign people, speaking 
by an amendment to the Constitution. 

At the same time, wherever discretionary power is 
vested in an officer, the courts, which merely declare 
what the law is, cannot reach the exercise of that dis- 
cretion. Measures exclusively of a political, legisla- 
tive or executive character cannot be reviewed or 
examined in the courts, since supreme authority as to 
those questions belongs to the legislative and execu- 
tive departments.* 

The people must have more checks upon the abuse of 
power than the separation of departments, and the 
supervision and check of one upon the other. Re- 
sponsibility to a pure, upright constituency, and fre- 



* In the case of Willis Lago, whom the Governor of Ohio 
refused to surrender to the officers of Kentucky, the Supreme 
Court (13 Mar., 1861,) said: "But if the Governor of Ohio re- 
fuses to do his duty, the General Government cannot compel 
him." 



l-.w EBfi ,.i 001 l i:\mi \ i. 7!< 

(pK'nt elections, are necessary to preserve the people 
from the abuse of the discretionary power of officials. 
It* the people be corrupt, their government cannot be 

popular and at the same time pure. 

In England, the Supreme Court is composed of a 
OOmmittee of the House of Lords, or of the Privy 
Council, hut since Parliament is almost unlimited in 
its power to pass laws, the question of the legality of acts 
upon which the judges themselves voted, is not apt 
to come before the law Lords. There is thus little- 
fear of their acting as judges in their own case. 

The belief of many wise men, in the danger of the 
legislature gradually destroying the power of the Ju- 
diciary, and crippling the executive, is worthy of 
notice. The danger having been known, has been 
avoided. Many cases have been decided by the Fed- 
eral courts, regardless of laws passed by Congress, 
thus making void Congressional acts; yet no attempt 
to destroy the judicial power has prevailed, nor has 
the President lost any of his power or influence in the 
nun nt. as defined by the Constitution. 

While our Constitution might last but a few days 
with a nation accustomed to arbitrary or despotic 
government, our submission to the laws of the land 
and the adjudication of the courts, will perpetuate our 
Republic* 

Of the pre-eminence of our Federal Judiciary the 
nation i< justly proud, for no chapter in American his- 
tory is a more noble record than that of the United 
courts. Our Supreme court may not be infallible, 
and its didsions may be reversed by itself. In the 
. in which it denied citizenship to the 
* Electoral Commission, 1- 



80 THE TRIPARTITE DIVISION. 

negro, an amendment to the Constitution was called 
for to define citizenship, * and thus the people reversed 
the decision of its highest tribunal and at the same 
time gave it new and greater powers. 

The tripartite division of the powers of the govern- 
ment then is only such an arrangement as enables one 
officer to check and control another. It may be said 
to be the key to the successful organization of free 
government. Separation is but a means of weaken- 
ing governmental authority, responsibility being a 
check upon every minute ramification of power. 
That power to which every officer of government is 
finally responsible is the Sovereignty. 

It is admitted by political writers that a sovereign 
power must reside somewhere. 

France admitted it often, but placed it in some one of 
the branches of government. A legislature assumes 
itself to be the sovereign, and the despotism of an 
Assembly becomes one of the blackest pages of his- 
tory. 

The thirty tyrants of Athens assume sovereign power 
and the many-headed monster illustrates the evils of 
irresponsible power. 

With us, the supreme sovereign authority is not in 
the entire Federal government, not in the States, but 
in the people, if it is anywhere. The people have 
given up some of their power to the Federal govern- 
ment in trust to be used for their benefit, some to the 
States for a like purpose, some to the county, some to 
the city, but all the officers and agents of government 
are but servants acting under authority delegated from 

* XIV. Amendment, sec. i. 



I >WJ 81 

Ike people. The people have given, the people can 
takeaway. Thej are willing to trust to the laws to 
gseafdon of life, liberty and happin 
At what time the people delegated certain powers 
to the government is often a difficult question even for 
antiquarians. Having inherited as much of the 
common law of England as was adapted to our 
situation, the origin of many of the powers of our 
government — both Federal and State — is involved in 
obscurity. Our Federal government possesses many 
of the powers held by the mother country before our 
Independence, and the Constitution of 1787 only 
Bjsteniiied and strenghtened powers already existing 
in the Confederation. When did the people give to 
Parliament its powers, to the States theirs, are diffi- 
cult historical problems. It is worthy of note that 
our Federal Constitution is like a work of addition, is 
a process of creation ; while the State Constitutions 
are like acts of subtraction, are processes of taking 
power from the legislatures. The legislatures are 

ued to be omnipotent, unless the people have 
stripped them of power by constitutions, or by delegating 
powers to the general government inconsistent with 
the exercise of a similar power in the States. Be our 
government formed by adding to the powers of Con- 
gress or by stripping the legislatures, the people are 
till sovereign. 

ieving that liberty would be served by a tripar- 
tite division of powers, other checks upon delegated 
authority of a similar nature, were placed in the Con- 
stitution to render permanent and effective that three- 
fold division. 



82 THE TKIPARTITE DIVISION. 

United States officers are prevented from acting as 
legislators, and Congressmen are forbidden to create 
or make more desirable Federal offices for them- 
selves, * yet strange to say they are not prevented 
from regulating their own pay at any time, nor that of 
the President every four years. In order that the 
President may represent the people, no officer, execu- 
tive or legislative, can be a Presidential elector ; f yet 
the host of executive officers can labor for the selection 
of their chief and Congressmen can enjoy the patronage 
of appointments as a reward for partisan efforts. 

The legislature being the strongest branch of the 
government, the greatest check upon it is in declaring 
the Constitution and laws made in pursuance thereof J 
to be the supreme law of the land and binding by 
oath all officers to obey the Constitution. 

Again came a division of the Legislature into two 
branches, and prohibitions against the enactment of 
laws except for certain definite purposes. Impeach- 
ment, too, like the sword of Damocles, hangs over the 
President, Vice President, and all civil officers of the 
United States. $ Last of all, an amendment to the 
Constitution can check any injurious use of power 
assumed or granted. || 

Many laws are made to delegate power to indi- 
viduals, more are made to check the use and abuse of 



* Art. I., sec. 6 and 2. 
f Art. ii., sec. 1 and 2. 
+ Art. vi. 2. 
§ Art. ii., sees. 3 and 4. 
II Art. v. 



tOVBRN M 

autlioritv; -till a mistake La sometimes made in not 
giving officials enough power. 

The great difference between the Confederation and 
the pi rernment is in the greater ability of the 

latter to execute its laws by acting upon the individual 

with executive and judicial powers, instead of mere 
requisitions upon the State-. Our government neither 

Wfl the hands of the States with which to work, 
nor the .Judiciary of the States to sit in judgment on 
fa Laws, but by its own executive officers and its own 

b; it Bays to the States thus far shall you go, and 
irther. Our Federal government is not like a 
rational man who can merely lay down precepts for 
obey, if they wish, hut like an independent 
man guided by the best wisdom of all time, it walks 
among the nations of the earth, growing stronger and 
stronger, and if we be true to our trust, it may keep 
growing better with its increasing strength, supreme 
and uncontrolled in the peculiar powers and functi) 
which have been delegated to it. 



84 



85 



86 



CI I A ITER VI. 



VI. — TWO IB THE SENATE AND HOUSE 

OF REPRESENTATIVES. 



It Is generally admitted that the distribution of law- 
makers into two chambers is beneficial. If the two 
chamber- be composed of the same kind of men, elect- 
ed in the same way, even then there are advantages to 
rived from the legislative power being deposited 
ID two distinct bodies of men. Legislation is de- 
, and a chance given for more thorough investi- 
!! of the bills passed by both houses. When the 
val of two distinct bodies of men is to be secured, 
a full, free discussion of the measures proposed is 
likely to arise, and thus precipitation avoided, and the 
be heard from for or against the measure 
are usually better for deliberation, and 
ibject to the -way of passion, as are large assem- 
bnl this objection to a single large chamber is 
• the use of committees. 
The utility of two chambers La demonstrated by the 
lit constitutions of recent formation provide for 
two b ,nd it is now almost univer- 

idmitted that two chambers do tend to prevent 
islation, and to secure for the laws the 
ent of two distinct deliberative assemblies. 
furnishes as with accounts of the doings of 
id or higher chambers, corresponding with our 



88 TWO CHAMBERS, OR 

Senate, and their nature may be studied with profit. 
Rome had its Senate, Venice had its Council of Ten, 
Austria its Aulie Council, and England its House of 
Lords, while constitutions of more modern date usu- 
ally provide for a second chamber, and form it of men 
of different qualifications from those who compose the 
first, or popular house. Thus, to the common advan- 
tages of a second chamber are added elements which 
represent the nation more fully and fairly than would 
even two bodies similarly composed. 

The United States Senate was formed, not so much 
for the advantage of having a second chamber, as for 
preserving by it the equality of the States in the Fed- 
eral Union. The Constitution speaks of the Represen- 
tatives being elected " in " the States, but the Senators 
are said to be chosen "for " the States. The jealousy 
of State sovereignty runs through the entire Constitu- 
tion, and, I may add, through the entire history of this 
nation. So jealously did the friends of State sover- 
eignty guard the individuality of the States, that the 
Constitution forbids any amendment to be made de- 
priving a State of its equal representation in the 
Senate.* 

Moreover, the Senate was the department of the 
government which was viewed with peculiar favor 
by the Federal Convention. The friends of a strong 
government stopped not at the favors that the States 
rights party wished for the Senate, but Hamilton 
wished the tenure of the Senatorial office to be — like 
that of the Federal judiciary — during good behavior, 
or what is the same thing, for life. 

* Art. v. 



HOI U IWD -I NATE. 89 

\ Representative need be only twenty-five year 

a citizen; a Senator, thirty yean 
ami nine years a citizen. The email States hay- 
ing obtained a defence from all aggression from the 
a well as the national government, by 
their equality in the Senate, which can by no amend- 
ment he changed, then yielded powers to the general 
rnment, which only a Senate representing States 
could have obtained. 

The term of office being six years, giving stability 

and strength to the Senate, the judicial power to try 

all impeachments, a share in the executive power by 

nt in appointments, and the power 

n in making ami concluding treaties, by giving 

and consent, show the superior confidence in 

which the people held that body.* 

interests of the States have been by it carefully 
guarded, while the good of the nation has not been 
neglected. Its treaties may have been unpopular, yet 
in time the people have usually approved of its 
To our Senate, men are accustomed to 
so much for a body intent on guarding the 
f the States, as for a class of men distin- 
guished for wisdom, patriotism and integrity. There 
iter and I lay; -ed with equal zeal and 

n the doctrine of nullification; Calhoun de- 
ider of sovereignty to the Federal gov- 
ernment by the States or by the people; Clay ex- 
led the powers of Congress, and Sumner plead 
far the rights of man. History has taught State pride 
and national honor alike to go to the Senate for their 



90 TWO CHAMBERS, OR 

champions, and as the Roman Senate organized the 
forces that achieved the conquest of the world and 
was esteemed the corner stone of the Eoman Repub- 
lic, so our Senate, in the eyes of foreign nations, is 
held to be the most stable part of our government and 
the sole arbiter of foreign affairs. The Roman Senate 
was not composed of men elected by a popular vote, 
but of men chosen by the Censors. Every five years 
the censors revised the list of Senators, nor was the 
choice of Senators by the censors arbitrary. A line 
of promotion prepared men for the Senatorial order, 
and gave Rome her eminent statesmen. Let a man 
become eminent in the British House of Commons, 
and the Lords welcome him as a peer. Thus, na- 
ture's aristocracy in England protect and defend her 
hereditary aristocracy, and the Lords boast of their 
Eldons, Broughams and Pitts. Our Senators, being 
chosen by State Senators and Representatives, are 
honored and trusted by a class of men who are 
presumed to be acquainted with the men of ability 
and worth throughout the State. While mere popu- 
larity may secure for a man a seat in the House, the 
Senate is usually reached by qualities of a more solid 
nature. 

The Representatives * are chosen " by the people of 
the several States/' and hold office for only two years. 
A vacancy in the House is filled by the tedious pro- 
cess of a writ of election issued by the State executive 
to the people of the unrepresented district, whereas a 
vacancy in the Senate is filled by an appointment by 
the Governor of the State until the Legislature thereof 

* Art. i., sec. 2. 



H0U8E LVD BBNAT1. 91 

new Senator. The Senatorial office is too 

dear to the State for it to allow it to be long vacant. 

While the Bouse electa its own Speaker, the Senate 

hai the Vice-President of the United States for a pre- 
siding officer, and thus every State has an equal number 
of men upon the floor. When the Senators are equally 
divided, the Vice President, representing the whole 
nation, gives the easting vote. When the Vice-Presi- 
dent i- acting President, oris unable from any cause to 
Le over the Senate, that body elects its own Presi- 
dent, bat the man so elected may chance to become 
. -id. nt of the United States. 
Tin an alone impeach, but the Senate has 

r to try all impeachments, and while- 
ordinary juries which try high crimes and misde- 
meanor- are required by the common law to be unani- 
before they can convict, the Senate can convict 
two-thirds vote. True, a verdict that can 
only remove from office and disqualify a man 
from holding and enjoying any office of 
r, trust or profit under the United States, 
ere as that of a jury which may 
: lowed by sentence taking away life or liberty ; 
natorial censure is nearly as severe as exile. 
given the sweeping power to make 
regui Deeming the times, places and manner 

of holding elections for Congressmen,'- and to alter 
regulations about the Bame as the States may 
to the place of choosing Sena- 
The many friends of the colonial corporations, 
saw that the right of self-preservation en- 
* Art 



92 TWO CHAMBERS, OR 

titled Congress to a control over the composition of its 
own body, but they refused to give Congress power to 
say to the State legislatures: "Abandon your capitol ; 
go to where I tell you to elect Senators." 

When the House of Eepresentatives is empowered 
to elect a President of the United States by reason of 
no man getting a majority of the electoral votes, the 
Representatives are not permitted to vote as individu- 
als, but the delegation from each State has one vote. 
When the Senate, for a like reason, is empowered to 
elect a Vice-President, they vote as individuals. In 
the former case, a majority of the whole number of 
States is nesessary for a choice ; in the latter, a majority 
. of all the Senators. Thus, we see the favor with which 
the Senate is viewed in the structure of our govern- 
ment. Its preponderance of power as a body is due, 
partly, to its peculiar fitness for the duties and powers 
imposed upon or vested in it, but chiefly did it re- 
ceive its position in the government because it repre- 
sented the States in the Federal Union, and formed 
the basis of the compromise which was necessary to 
secure the co-operation of the various sections of the 
country. 

As in England, the Lords represent the aristocracy 
and the Commons the masses of the people, so with 
us, the Senators represent the corporate bodies known 
as States, and the Eepresentatives stand instead of the 
individuals, who compose the nation. In ancient 
times, no government was entirely similar to ours, nor 
as like it as is that of England. The idea of repre- 
sentation, as we understand it, was unknown to the 
nations of antiquity. True, they had Republics, 



BOUBI UTS -i \ \tk. 

[•residents and elections 

}>v the people, bul the idea of a man chosen by hia 
laws for them and in their stead, 

red into the policy of ancient Republics. 
The Republics and Federal governments of Greece 
had their popular assemblies, but in them each male 
citizens voted on the passage of laws and took part 
in the pr of their Parliamentary bodies, as 

do now onr elected Representatives.* 

In t ml Leagues of Greece — especially that 

of Achaia— the popular assembly was composed of 

- who could afford to bear the expense 

of going to the capitol, but the citizens assembled from 

member of the League had but one vote, as 

il the practice with us when the President is elected 

by the House of Representatives. The jealous sov- 

ity of independent States then, as now, endeav- 

to guard against the preponderating strength of 

associated governments. History has shown that the 

name tenacious grasp of power which has characterized 

nmall en in consolidated governments. 

r once held i- slow to be abandoned, and the 

lution of confederated or consolidated govern- 

it becomes necessary, is generally the 

work of bloody revolution. 

f ancient times >vere select bodies of 
aged men, and at Rome, Sparta and Athens, once 
nerable chieftain held the office for life. 
In the Aehaian League— which approached the near- 
est to our form of government of any other — the Ben- 
ml duties defined by the popular 
il i torernment, vol. i. 



^4 TWO CHAMBERS, OR 

assembly, which was composed of the sovereign peo- 
ple. The President of the League, too, was the 
commander-in-chief of the Federal army ; he could 
not be elected for two successive years or terms, but 
the approval of the Assembly was shown by frequent 
re-elections. 

The executive department of our government is- 
strengthened by the division of the legislature into 
two houses. The President is enabled more effectually 
to prevent legislation which he condemns since it is 
more difficult to obtain a two-thirds vote in two assem- 
blies than in one large one. Men will not be so rash 
and inconsiderate when they know that another body 
stands ready to approve or condemn their work. The 
President's opposition, too, on account of his power in 
the matter of appointments, is by no means desired by 
Congressmen. 

The President's part in legislating is of a negative 
nature, and when he stands in the way there must be 
some strong sentiment, some vehement passion, to 
enable Congress to pass a bill. The chance is, too, 
that one chamber will be on the side of the President, 
and thus by division, congressional action is held in 
check and the President is able to dictate the policy 
of Congress. 

The authority given to Congress is very great, and 
it has the sweeping privilege of passing all laws 
necessary and proper for carrying into execution the 
powers vested in Congress, and all other powers vested 
by the Constitution in the Federal government or any 
department or officer thereof. * It is for Congress to* 

* Art. 1-8-last. 



SOUS! \M> -in i ii- l - r > 

le the ways and means for carrying into execu- 
tion the manifold operations of the government. It 
may ordain and establish Federal courts inferior to 

ipreme Court which alone La known to the Con- 
stitution. The compensation of the Federal judges 
might be fixed by Congress so low that none but the 

wealthy or corrupt could afford to act as judges. 

Ytr, Congress having power to regulate the 

appellate jurisdiction of the Supreme Court and to 

i/.e the inferior Federal courts — as it did by the 

Judiciary Act of 1789 — the entire judicial department 

eminent by an ambitious, despotic Congress 

^ht be reduced to almost impotent helplessness. 

Thus IB seen the wisdom of having a second cham- 

> bere a few men — conservative as a natural result 

of age and the long study and practice of the law — 

can withstand the rashness of a more numerous and 

popular assembly where passion and not reason often 

hold Bway. In our history the Senate and the Presi- 

iiave had the duty to perform of checking the 

popular li 

ihington refused the demand of the House to 
sopy of the instructions to Mr. Jay and 
lative to the Jay treaty with Eng- 
"The power of making treaties," said Wash- 
ington, ''is exclusively vested in the President by and 
with the advice and consent of two-thirds of the 
a; thereupon the treaty becomes the 
law of the land."* The House had to submit and 
Vote the money needed to carry the treaty into effect 

* Statesman's Manual. 



96 TWO CHAMBERS, OR 

President Jackson vetoed bills that Congress cher- 
ished as vital to the welfare of the nation. He 
deemed the United States Bank an odious monopoly, 
and his veto of the renewal of its charter was sus- 
tained by the people in his triumphant re-election. 
Congress voted a subscription of public money to the 
stock of a private company — the Maysville Road Co. 
Jackson successfully opposed the bill as unconstitu- 
tional, impolitic, injurious and demoralizing. 

Presidents Tyler and Andrew Johnson made a free 
use of the veto power, opposing the favorite measures 
of the parties that placed them in office, but only 
when the time shall come for writing the history of 
the Whig and Republican parties, can it be said who 
were right. 

Conflicts between the two chambers of Congress, if 
settled at all, are pacified by means of committees of 
conference and compromises; the opposition of the 
President can be overcome by a two-thirds vote of 
both houses. 

Nearly every veto is a triumph of law. " The 
nation is free," said Benjamin Constant, " when the 
deputies are shackled." With a pliable President, or 
one who cares not for law or constitution, then with 
us Congress is unshackled, expediency becomes law 
and soon distrust and anarchy will take the place of 
order and good government. " Coiruptissima respub- 
lica" says Tacitus, " plurimae leges." In a degraded 
corrupt government the statute books become pon- 
derous volumes. Some of the best legislation of 
modern times has removed the restraints applied by 
former law makers. The protective system of special 



Hoi M and 3J5NA ri-. 97 

ition, the burthens imposed upon Bociety by old 

law are attacked and removed, and for securing these 
liberties to the people men are applauded as statesmen 
and reformers. 

I eminent being a necessary evil, the less we are 
rned the better, as long as peace and order reign. 



98 



99 



100 



CHAPTER Vn. 



PROVISIONS IN THE CONSTITUTION IN THE NATURE 
OF A BILL OF RIGHTS. 



A Declaration, or Bill of Rights, determines certain 
powers that are excepted out of the general powers of 
government. History teaches that there are certain 
personal rights that men in office are prone to violate. 
To prevent a repetition of that violation, the govern- 
ment is prohibited by law from doing certain things. 

That all governments derive their just powers from 
the consent of the governed, is an old political maxim. 
rt There are three fundamental principles of the Eng- 
lish constitution," says Macaulay, rt which no one can 
»y when they began to exist. As far back as history 
can go, the King could not legislate without the con- 
sent of his Parliament, nor impose any tax without 
the consent of his Parliament, and he was bound to 
conduct the executive administration according to the 
laws of the land, and if he broke those laws his 
advisers and agents were responsible." In like man- 
ner, the consent of the people is the origin of the 
powers of our governments. 

The great political problem on this continent has 

been to preserve the rights of the individual, and at 

ime establish an efficient government. The 

emigrants to America had been trained to guard 

Bt the usurpations of power, and the most precious 



102 CONSTITUTION. 

jewels in all the charters and constitutions in our 
history, are the prohibitions by which the rights of 
the individual are protected from the violence of ty- 
rannical laws and an arbitrary use or abuse of 
power. 

When oppressive laws are passed and government 
becomes destructive of the ends for which it was in- 
stituted, men cease to submit with passive obedience. 
History is tame and uninteresting when destitute of 
revolutions. While private life is contented, and the 
political life of a nation keeps on undisturbed ; 
while material prosperity forms the chief aim of its 
citizens, the historian has smooth sailing, where no 
waterfalls or impending rocks give life and animation 
to his course. But when an oppressed people de- 
mand a redress of grievances, when the insolence of 
power is no longer endurable, when civil wars and 
revolutions arise whereby the people strive to secure 
the ratification of rights forcibly demanded, then it is 
that history is worthy of study. 

Our Constitution was framed for a people trained in 
the school of English liberty. In the long contest for 
oivil and religious freedom, wherein were employed 
every element that the ingenuity of man could de- 
vise, many battles had been fought against the claims 
of arbitrary power. Violent Princes, presuming that 
they ruled by divine right, had been checked in their 
mad course of oppression, and many a noble soul gave 
up his life in prison or at the block in behalf of 
liberty. 

The main fruits of the contest are recorded in 
Magna Charta of 1215, the Petition of Eight of 1629, 



BILL OF kk.ii Rk 103 

and the I > i 1 1 o( Rights of L688 — charters that arc all 
dear to every Liberty-loving people. 

The principles that guided the men of 1776 were re- 
affirmed in the convention of 1787. The Declaration 
of Independence was not the mere production of Jef- 
ferson, it was the ripe fruit of all the ages wherein men 

fcled for light and liberty. From the days of 

the predatory despotism of William, the Conqueror,. 

to the Declaration of Independence, is seven centuries, 

and daring all that time popular rights plead for 

gnition. 

did the American Revolution lull our ancestors 

to sleep, or make them forget that " eternal vigilance 

I »rice of liberty." English history is our his- 

and Magna Charta contains limitations upon gov- 
ernmental power which our Constitution again secures 
for the people. The progress of freedom in England 

low and imperfect. The memorable thirty-ninth 
section of Magna Charta which the barons, sword in 
hand, extorted from King John, began " Nullus liber 
homo," no free man was to be deprived of trial by a 
jury of his peers, or by the law of the land. In 1215, 

}>ly one-half of England's two millions of in- 
habitants were slaves in abject wretchedness. No 
in Magna Charta speaks the language of our 
Thirteenth amendment. "Neither slavery nor in- 
voluntary servitude except as a punishment for crime 
of the party shall have been duly convicted 
shall exist" within England or any place subject to 
its jurisdiction — nor, inheriting English laws, as we 
did, could our Constitution have been adopted in 178S 
with such a clause in it. As the English Constitu- 



104 CONSTITUTION. 

tion, growing with the growth of the number and 
power of the English people, has become more 
enlightened and free with the progress of civilization, 
so our Constitution has kept pace with the progress of 
the world. Thus the sphere of individual liberty has 
been enlarging for centuries, and the powers of gov- 
ernment in the meantime have been more strictly 
limited and defined. 

To trace the progress of individual liberty in this 
land for the past century is not attempted, but I shall 
apeak of the protection to life, liberty and property 
guaranteed by the Federal Constitution and its amend- 
ments. 

It was not strictly correct to say that the men who 
formed the Constitution asked the adoption of it while 
it yet contained no bill of rights. Its prohibitions 
upon governmental power almost equal those of the 
amendments that were passed expressly to secure the 
protection of person and property. 

The entire Federal government is itself constrained 
to the exercise of only such powers as have been dele- 
gated to it, all other powers being reserved to the 
States or the people. It is the State governments 
against which the individuals must guard by a bill of 
rights. The States have all the prerogatives of power 
except what have been expressly taken away, and it is 
the plenitude of their powers which the individual 
needs dread. The Declaration of Eights in the new 
Constitution of Pennsylvania is fitly made the first 
article thereof, and its twenty-six sections indicate the 
necessity of restraining the State "that the general, 
great and essential principles of liberty and free gov- 



bill of &IGB r& L06 

eminent may be recognized and unalterably estab- 
lished 

us trace the history and note the importance of 

tin.- various clauses in the nature of Declarations of 

iits in the Constitution itself in the first place. 

trial by jury or the law of the land and privi- 

of the writ of Habeas corpus, whereby neither 

right was to be sold, denied, nor delayed 

y man, were the crowning glories of the great 

charter, and for six centuries have formed the most 

ling characteristics of the English Con- 

tion. 

True, the writ of Habeas cor})>i.< was rendered more 

ly remedial by the statute of Charles II.; yet 

tli.- principle of the writ, the taking of a man from 

d to inquire into the cause of his commitment, 

and discharging him if not legally confined — per- 

I the English laws four centuries before the 

of that King and the Habeas corpus act of Lord 

Shaftsbury. 

in of trial by jury is unknown. As far 

Dgliah history goes, even into the history of 

the Germans and the Normans, the ques- 

guilt or innocence of a criminal 

termined by a free and enlightened 

of his fellow citizen-, and not by officers of the 

authority.! But in England alone I — 

Normandy be added — juries have ever been 

distinct from the judges, who compose the court. In 

• Pa,, art. i. 
t Creasy 

Ijth'l Hi-t. of Jury. chap, ii., iii. 

8 



106 CONSTITUTION. 

England juries were summoned for the sole purpose 
of giving a true saying (veredictum) on a question of 
fact, and never have had anything to do with the 
sentence of the court, which follows the verdict of the 
jury. Because, says Forsyth, the functions of the jury 
have always been distinct from those of the judge, the 
institution of trial by jury has been perpetuated in 
England. From judges of mere questions of fact in 
criminal trials the step to a like function in civil 
causes was easily taken, but when it was taken is un- 
known. 

In the reign of Henry the Second (1154-1188) trial 
by jury was regulated and established on a basis very 
similar to the jury system of to-day. A law of the 
time of Edward I. compelled men to submit the ques- 
tion of guilt or innocence to the jury, and many other 
important changes in the laws regulating trial by jury 
have been made during the many centuries of the 
existence of that noble institution, but the changes 
have only rendered jury trials more and more efficient 
in preserving and vindicating the lives, liberties and 
possessions of an intelligent and upright people. 

The Constitution wisely avoided specific regulations 
of jury trials except in requiring " such trial to be 
held in the State where the said crimes shall have 
been committed, but when not committed within any 
State the trial shall be at such place or places as Con- 
gress by law may have directed."* The memory 
of the transportation of suspected criminals 
from America to England for trial, was fresh in 
the minds of our forefathers and the wide extent of 



* Art. iii.-2. 



BILL OF RIGHTS. 107 

the Federal government might well call for thia 
precaution against the use of a jury prejudiced in 
favor of the prosecutor. Indeed the discretionary 
power of selecting jurymen placed by Congress in the 
hands of United States marshals, gives just grounds 
for complaint against the injustice of Federal judicial 
administration. 

No bill of attainder or ex post facto law shall be 
d. The legislature, or rather Parliament, by bills 
of attainder declared a certain act to be treason or 
convicted a man of treason, not by a judicial investi- 
gation, but by a mere resolution. An ex post facto law 
applies only to criminal affairs and either increases the 
punishment of an act already committed or makes 
that criminal which when committed was not so. It 
is a prohibition upon Congress in favor of the 
offender, and marks the progress of legislation from 
the madness of a savage age to the mildness of benefi- 
cent laws. Mr. Wilson contended, In the Constitu- 
tional Convention, that * " no lawyer, no civilian would 
, at ex post facto laws are not void of themselves," 
yet the Convention made assurance doubly sure by 
prohibiting both Congress and the States from passing 
bills of attainder or expost facto laws. 

t No person shall be convicted of treason unless on 
the testimony of two witnesses to the same overt act, 
or on confession in open court. 

The crime that strikes at the life of civil govern- 
ment, the evidence required for the conviction of the 
defendant, and the limit of the punishment of the 

* Elliot's Debates, vol. v., p. 462. 
f Const., Art. iii., 3-1. 



108 CONSTITUTION. 

offender are definitely defined by the Constitution. 
The next thing to having good laws is to have those laws 
that do exist, plain and well understood. By act of Con- 
gress, treason is punished by death, or fine and impris- 
onment in the discretion of the court ; but for engaging 
in or assisting a rebellion, or insurrection against the 
United States authority or laws of the United States, 
the death penalty is not to be inflicted. The tendency 
of modern legislation is toward the mitigation of pun- 
ishment. 

Upon an attainder of treason, which means a judi- 
cial conviction of treason, the traitor himself is 
punished, yet his friends are not punished by corrup- 
tion of his blood, whereby he could neither succeed 
as heir to any lands which might otherwise have 
come to him by descent, nor could other persons in- 
herit from or through him. The cruelties of English 
penal laws rose from the implacable hatred of inter- 
mingling races, and the audacity of an enterprising 
half-savage people. Civil wars, religious conflicts, the 
pitiless cruelty of the higher ranks of society toward 
the lower, the chafings of human nature against the 
restraints of inherited condition, the ignorance and 
lawlessness of the commonalty, and the vices of the 
nobility, called for a penal code where death was 
written in every line. 

Our Constitution was for a different system of 
society, and the rigor of English laws was mitigated. 
Only that part of the English code that was adapted 
to our situation was held to be in force here, and only 
those laws re-enacted here that were suitable to our 
social system. 



rill OF BIGHTS. 109 

* No religious tost shall evor be required as a quali- 
fication to any office or public trust under the United 
Stat* 

The zealots of religious bigotry and fanaticism ever 
strove to bond all views into conformity with their 
own. The Catholic persecuted the Protestant, who in 
turn, when in power, became persecutor. The history 
of the Established Church in England is such a story 
of outrage upon private judgment and religious free- 
dom that our ancestors desired to exclude the Federal 
government from all connection with religious affairs. 
The framers of our Constitution, with all their learn- 
ing and ingenuity, thought that they would accomplish 
enough if they should establish a system of govern- 
ment which they believed would perpetuate a happy 
union, and they very wisely left all questions un- 
touched that had no necessary connection with govern- 
ment. To meddle in matters of religion is no part 
of the business of the general government and would 
only tend, says Judge Cooley, to revive what Mr. 
Madison thought was extinguished, "the ambitious 
hope of making laws for the human mind." 

But the Constitution was not definite enough and 
the very first clause of the first amendment restrains 
Congress from making any law respecting an establish- 
ment of religion or prohibiting the free exercise thereof. 
Thus the beneficence of the Federal government — like 
the air we breathe — is enjoyed by every liberty-loving 
man, whether he be white or black, Christian or in- 
fidel. The Providence that rules the affairs of men is 
than the ambition of spiritual pride or the 
* Art. vi. 



110 



CONSTITUTION. 



intolerance of sects. " In matters of religion," says 
Locke, " every man, must know, believe and give an 
account for himself." Every step that government 
takes in religious affairs is that much of a trespass 
upon the sacred domain of private judgment and in- 
dividual conscience. The Federal Constitution has 
not yet made the slighest trespass. 

* The citizens of each State shall be entitled to all 
the privileges and immunities of citizens in the 
several States. 

Individual rights are thus protected against a possi- 
ble abuse of State power. Although the courts refuse 
to define what a citizen is entitled to by this guarantee 
— preferring to decide each case as it comes up — it is 
well known what are some of the privileges and im- 
munities of citizens. A citizen of another State is by 
the Constitution entitled to such fundmental rights as 
protection by the government, the enjoyment of life 
and liberty with the right to acquire and possess and 
transfer property, free passage through and residence 
in another State, to institute and maintain actions of 
every kind in the State courts, the payment of taxes 
on an equality with the citizens of the taxing States. 
With the definition of citizenship given by the Four- 
teenth amendment and the additional protection to 
citizens of the United States by the prohibitions on 
the States of making or enforcing any law which shall 
abridge the privileges or immunities of citizens, the 
individual has thus a general citizenship in all the 
States and the Federal courts can inquire into the legal- 

* Art. iy., 2. 



BELL Of KH.HTS. HI 

ererj legislative enactment that peemi to abridge 

the privileges or immunities of American citizen-. 

Thus have I noticed provisions in the nature of a Bill 
of Rights in the Constitution itself— referring to only 
iwo or three of the amendments. The Constitution 
probably, could not have been adopted had not 
the people believed that the amendments recommend- 
ed by so many of the States would soon be adopted and 
made part of the Constitution. May our people ever 
be suspicious of power and jealous of their rights. 



112 



113 



114 



CHAPTER Vm. 



VIII. — BILL OF RIGHTS— CONTINUED. 



The construction that is given to the First amend- 
ment is that Congress cannot take measures in advance 
to prevent the speaking or publication of any senti- 
ment. It can pass laws to punish slander or libel, but 
it cannot require the writer to submit his sentiments 
to another for approval previous to publication. 

Men are responsible for the bad use of words just 
as they are for the bad use of a gun. " Take away 
responsibility/' says Laboulaye, " and liberty becomes 
the right of every man to do as his caprice dictates, 
which is the exact definition of tyranny. The only 
difference between tyranny and liberty is that tyranny 
is not responsible for its acts, and liberty carries in its 
train responsibility."* 

" The greatest of all our liberties," says May, " is 
the liberty of opinion. When the art of printing had 
developed thought and multiplied the means of dis- 
cussion, the press was subjected throughout Europe to 
a rigorous censorship. First the church attempted to 
prescribe the bounds of human thought and knowl- 
edge, and next the State assumed the same presumptu- 
ous office. No writings were suffered to be published 
without the imprimatur of the licenser, and the print- 



* Const. U. S., vol. ill., p. 539. 



116 AMENDMENTS. 

ing of unlicensed works was visited with the severest 
punishments. 

"After the Eeformation in England, the Crown 
assumed the right which the church had previously 
exercised of prohibiting the printing of all works, 
c but such as should first be seen and allowed.' The 
Censorship of the press became part of the preroga- 
tive, and printing was further restrained by patents 
and monopolies. Elizabeth interdicted printing save 
in London, Oxford and Cambridge."* 

Under the Stuarts, political discussion was silenced 
by the licenser, the Star Chamber, the dungeon, the 
pillory, mutilation and branding. In 1680, the 
twelve judges under Chief Justice Scroggs declared it 
to be criminal at common law to publish any public 
news, whether true or false, without the King's 
license. 

In 1695, the Licensing Act expired and henceforth 
in England every writing could be freely published. 

In 1791, at the time of the adoption of the first ten 
amendments to the Constitution, the regulation of the 
practice of the courts in the trial of causes of libel by 
Mr. Fox's Libel Bill, was agitating the Parliament of 
England. For nearly a century the English press had 
been free, but two principles of law had worked great 
injustice to those indicted for libel. 

In the first place, a publisher in England until 1843, 
was held criminally answerable for the acts of his 
servants — the fact of publication having been held 
sufficient proof of the guilt of the publisher. 

* Const. History, vol. ii., pp. 101 and 103. 



r.u.L OF BIGHTS. 117 

In the Beoond place, the question whethei the 
writing were a libel or not was held to be a question 

for the court alone, the jury could only decide 00 the 
>f publication. This was held to be the law of 
England until 1792. While the mere opinion of one 
man could fix the question of intention, malice, 
sedition, or criminal nature of a writing, the liberty of 
the press was a mere shadow, and the only difficulty in 
punishing a Junius was in the finding of him. 

Thus it took a contest of many generations to free 
the English press from governmental dictation, and 
now while no previous restraint can be imposed upon 
a writer, still men discuss with earnestness concerning 
what laws are most fit to restrain and punish slander- 
ous words and a libelous press. 

Every man has a right to freely utter and publish 
whatever he may please, except so far as such publica- 
tions from their blaspheny, obscenity or scandalous 
character may be a public offense ; or by their false- 
hood or malice they may injuriously affect the stand- 
ing, reputation or pecuniary interest of individuals. 

With free speech and press came of necessity the 
right of assembly and petition for redress of grievances. 
They are but the public and general use of the right 
to speak and write upon questions of common interest. 

The Second, Third and Fourth amendments prevent 
the enactment of laws that might abridge the sacred 
right of self-defense or subject the property of a citi- 
zen to wanton violence. 

It is a legacy of English law that every man's 
house i- his castle, and to provide for the security of the 
people in their persons, houses, papers and effects 



118 AMENDMENTS. 

against unreasonable searches and seizures is but the 
re-enactment of a common law principle that runneth 
back so far that the memory of man runneth not to the 
contrary. 

The independence and security of the people of a 
Republic are guaranteed by the efficiency of its 
militia ; or, at least, by the ability and willingness of 
the people to vindicate, if needs be, by force their 
demands. The fear of a standing army pervaded the 
minds of our ancestors, and from the days of Tacitus, 
a large standing army and the heavy taxes needed to 
support it, have been odious to the free and enlightened 
citizens of every nation. 

The history of "general warrants" carries us back to 
the days of violent Kings and arbitrary arrests. The 
judges of the King's Bench, however, in 1763, put an 
end to warrants that authorized * the arrest of all 
suspected persons, by declaring that the common law 
requires that the offender and his supposed crime must 
be named in the warrant and the time and place of 
his offense described with reasonable certainty. 

The Alien and Sedition law of 1798, authorized the 
President to order all such aliens as he should judge 
dangerous to the peace and safety of the United States 
government, or all such as he had reasonable ground 
to suspect of treasonable conduct against the govern- 
ment, to depart out of the United States or be 
imprisoned. That law authorized the President to 
drive men into exile or to imprison them, not after a 
jury trial but upon suspicion, and justly was it viewed 
with hostility by the Democracy of the early days of 
the Republic. 



HILL OF RIGHTS, 119 

An officer who makes an illegal arrest is a tres- 
passer and liable for damages in a civil suit therefor, 
while for a person illegally confined in prison the 
writ of Habeas corpits to inquire into his imprison- 
ment, enables him to secure a speedy relief. 

The Fifth, Sixth and Eighth amendments chiefly 
regulate criminal prosecutions and all speak in behalf 
of the defendant. 

English criminal law grew up by a gradual mitiga- 
tion of rigorous proceedings against the accused. It is 
only in recent times that the defendant, for a crime of 
greater magnitude than that of a misdemeanor, has 
been permitted to have counsel for his assistance. 

To compel a man by torture or force to commit per- 
jury or convict himself is humanely forbidden by our 
fundamental law. True, the cases of some petty crim- 
inals against the United States government need not 
come before a grand jury, but in whatever way a man 
is deprived of life, liberty or property, it must be, by 
due process of law, by some general and well known 
process, by some publicly recognized method. 

The policy of the law has become so mild toward 
defendants that a man is not held to be twice put in 
jeopardy of life or limb, if after conviction he receives 
a new trial, and even ex post facto laws may be passed 
by Congress, if they are for the benefit of the accused. 
The strictness, too, with which the courts construe 
penal statutes gives every possible advantage to the 
accused. 

Private property is not to be taken for public use, 
by the Federal government, without just compensa- 
tion. The compensation to the citizen for the taxes 



120 AMENDMENTS. 

taken from him is the security afforded him by the 
government ; when property is taken by the right of 
eminent domain, the individual who has been de- 
prived of more than his share for the common good, 
is compensated. 

" There are occasions," said Chief Justice Taney, * 
" when private property may lawfully be taken or de- 
stroyed to prevent it from falling into the hands of the 
public enemy, and also where a military officer 
charged with a particular duty may take private 
property for public use. The government is bound 
then to make full compensation to the owner, and the 
officer is not a trespasser nor individually liable. But 
the danger must be immediate and impending, and 
the necessity urgent for the public service," 

The nation, however, as a supreme political society, 
cannot be sued and is only morally bound to make 
compensation. The officer of government who takes 
private property without legal justification, is indi- 
vidually responsible. 

Even the moral responsibility of the government for 
the destruction of property, which is compelled by 
some over-ruling necessity, is very doubtful, f The 
pulling down of houses in time of peace to prevent 
the spread of fire, or the seizure of private provisions 
for the army in the time of war, are instances of that 
over-ruling necessity, where the natural right of self- 
defense comes in and the government seems not even 
morally bound to make compensation. Such, at least, 
has been the policy of the government of late years. 

* 13 Howard, 115. 

f See Wm. Lawrence's Articles in The American Law Regis- 
ter for 1874. 



BILL OF BIGHTS. 121 

The rase of the Justices against 4 Murryis a late 

adjudication on the Seventh amendment. Murry, a 
United States marshal,' had been tried on a charge of 
assault and battery and false imprisonment, and the 
jury in a State court found a verdict against him. 
Under an Act of Congress the whole case was at- 
tempted to be brought before the United States Circuit 
Court of the Southern District of New York, for a 
retrial. 

The court there held that the Act of Congress caus- 
ing a retrial of a fact in a United States court after 
one trial by a jury in a State court, was forbidden by 
the Constitution and void. 

The court in which the case had been tried might 
have granted a new trial or an appellate court might 
have awarded a new trial by the court where he had 
been first tried, but the case could not be removed to a 
United States court for a new jury trial. 

The Supreme Court has held f that the provisions of 
the Fifth amendment apply to all cases where a second 
trial or second punishment is attempted to be inflicted 
for the same offense by a Federal judicial proceeding. 

Moreover, the Seventh amendment compels the 
Federal courts to proceed according to the rules of the 
common law. " There is no more sacred duty of a 
court," said Mr. J. Miller, J " than to maintain unim- 
paired those securities for the personal rights of the 
individual which have secured for ages the sanction of 
the jurist and the statesman, and in such cases no 
narrow or illiberal construction should be given to the 

* 9 Wallace, 274, by Mr. Justice Nelson, 
t Ex parte Lange, Oct. Term, 1873. 

parte Lange. PittsburgJi Legal Journal, 1S74. 



122 AMENDMENTS. 

words of a fundamental law in which they are em- 
bodied." By the principles of the common law, when 
a second trial is asked by the defendant for cause, or 
if the jury fail to agree, a new trial may be had. 

The value of the additions to the Constitution 
which guard the rights of the accused, are fully 
appreciated only when we remember the cruelty cf 
State prosecutions previous to the present century. 
The recollection of the sending of men from America 
to England for trial probably called forth the pro- 
vision that the jury shall belong to the State and 
district wherein the crime shall have been committed. 

The privilege of cross-examining the prosecuting 
witnesses is a valuable aid in the suppression of per- 
jured informers. That the State could so long employ 
the ablest lawyers in the Kingdom and forbid the 
defendant the aid of learned counsel, is a sad reflec- 
tion on the justice of English laws. 

The Ninth and Tenth amendments define the nature 
of the powers delegated to the Federal government 
and indicate that only a few of the things that the 
general government cannot do have been mentioned 
in the limitations in the Constitution. 

The absolute, express prohibitions upon the States 
in the United States Constitution up to the beginning of 
the late civil war were but nine. Since then six have 
been added, or seven, if we include the prohibition of 
slavery. The last three amendments are the results of 
a contest that has been going on since the foundation 
of our national union, and they mark the triumph of 
centralization over State sovereignty. It was a costly 
triumph ; may it result in the preservation of good 
government and the elevation of humanity. 



123 



124 



125 



126 



CHAPTER IX. 



IX. — JUDICIAL INTERPRETATION OF THE CONSTITU- 
TION — CHIEF JUSTICES JAY, ELLSWORTH 
AND MARSHALL. 



By means of the Judiciary power, the Federal gov- 
ernment enforces its laws by suits against individu- 
als, and secures a peaceable way of deciding legal 
controversies. 

The first judicial decision that excited the country 
was that of the Supreme Court in the case of Chris- 
holm's executors against the State of Georgia. Chief 
Justice Jay, delivering the decision of the court, there 
held, that a State is suable by individual citizens of 
another State, that the sovereignty resides in the peo- 
ple, and that the people have given to the Federal 
courts jurisdiction over suits against a State — a State, 
said the court, being a mere aggregate of individuals, 
like any other corporation. The States were alarmed 
at the danger of being brought before courts sitting 
in another State, and the Eleventh (xi.) amendment 
was passed. 

The nomination of John Kutledge as Chief Justice 
not having been confirmed by the Senate, his judicial 
career lasted but one term. 

Oliver Ellsworth, of Connecticut, the third Chief 
Justice of the United States, assisted to frame the 
Constitution and to draw up the Act of 1789, which 



128 THE SUPREME COURT. 

organized the Federal Judiciary. He was familiar 
with the country's history, and a great statesman as 
well as judge ; not so extreme a Federalist as Jay, 
nor was he a mere Jeffersonian Eepublican. In a 
decision, while presiding in the Circuit Court in North 
Carolina, he maintained that our government is partly 
National and partly Federalj and denied the validity 
of a State law confiscating debts due British creditors, 
while a United States treaty permitted the debt to be 
collected. 

The case of Ware against Hylton, or the British 
debt case, was first tried in Richmond in 1793. The 
question was whether the treaty of peace, which pro- 
vided that creditors on either side should meet with 
no lawful impediment to the recovery of the full value 
of all bona fide debts theretofore contracted — whether 
that treaty revived the debts which had been se- 
questered by Virginia during the war. The case was 
argued by John Marshall, Patrick Henry, Campbell 
and Innis. Upon different occasions, the same ques- 
tion came before Justices Jay, Cushing and Ellsworth, 
who held that treaties of the United States are the su- 
preme laws of the land, and that when State enactments 
sequestrating or confiscating foreign debts are forbidden 
by the treaty, the State enactments must yield to the 
treaty. 

Chief Justice John Marshall took his seat upon the 
bench of the Supreme Court at the February term, 
1801. He had to lay the very foundation of Federal 
jurisprudence, and he was peculiarly fitted for the 
work. Trained in the school of the Revolution, hav- 
ing imperiled his life as a soldier, he was a patriot 



. OH JX78TK 1: maksii all. 129 

of the purest type. Devoted to his native State, 
Virginia, he loved the nation more, and few nun 
in our history have done this land so much honor. 
A> a man, he was one of the plainest of citizens, 
kind-hearted, generous, of real republican simplicity, 
noble, brave and true. The greatest judge who has 
adorned the annals of our bench, he was the peer of 
Hale or Mansfield. 

One of the first constitutional questions that came 
before Chief Justice Marshall was that involved in 
the case of Marbury against Madison. Mr. Adams, 
before the expiration of his term of office, nominated 
Marbury to the Senate as a Justice of the Peace for 
the District of Columbia. The Senate approved the 
nomination. A commission was drawn up, signed by 
the President and sealed with the United States seal, 
but not delivered. Mr. Jefferson succeeded to the 
Presidency, and refused to deliver the commission. 
A mandamus was then moved for, commanding Mr. 
Madison, the Secretary of State, to deliver it. The 
question then arose, " Had Congress power to pass an 
act which authorized the Supreme Court to issue writs 
of ma7idamus to United States officers ?" Congress had 
passed such an act, but the Supreme Court held that 
the Constitution limited the original jurisdiction of 
the Supreme Court to certain cases, and Congress had 
thu< enlarged its original jurisdiction ; hence the un- 
constitutional act of Congress is void. The mandamus 
was refused. The question, whether an act repugnant 
to the Constitution can become the law of the land, 
was forever settled in the negative. Marshall's decis- 
ion was a perfect demonstration.* 

* 6 Cranch, 87. 7 



130 THE SUPREME COURT. 

In the case of Fletcher against Peck, the Supreme 
Court decided that an act of the legislature of Georgia 
impaired the obligation of contracts, hence the act 
was repugnant to the United States Constitution and 
void. Many cases have been decided by the Supreme 
Court regardless of legislative enactments which that 
court deemed contrary to the Constitution of the 
United States* 

The great case of Dartmouth College against Wood- 
ward, established the principle that a grant of corpo- 
rate powers is a contract, the obligation of which the 
States are inhibited to impair. 

In 1816, the New Hampshire Legislature amended 
the College charter, but the trustees refused to accept 
the amendments. The State courts supported the 
usurpation of Mr. Woodward, and the College ap- 
pealed to the Supreme Court. Mr. Webster and Mr. 
Hopkinson appeared for the College, Attorney-General 
Wirt and Mr. Holmes for Woodward. Mr. Webster's 
speech in behalf of his Alma Mater marks an epoch 
in the history of forensic eloquence. It was not only 
great as a judicial argument, but his spontaneous ap- 
peal to the feelings in that speech will probably live 
as long as any words that he ever spoke. " f After 
four hours of clear, forcible reasoning, Webster stood 
for some moments silent before the court, while every 
eye was fixed upon him. At length, addressing Chief 
Justice Marshall, he proceeded thus : This, sir, is my 
case. It is the case not merely of that humble insti- 
tution — it is the case of every college in our land. It 

* 4 Wheaton, 518. 

f Lives of the Chief Justices, by Flander, vol. ii., p. 445. 



chief JT79fICl KAB8B u.i.. 181 

is more. It Lfl the ruse of every clermosynary institution 
throughout our country — of all those great charities 
founded by the piety of our ancestry to alleviate hu- 
man misery and scatter blessings along the pathway of 
life. It is more. It is in some sense the case of every 
man among us who has property of which he may be 
stripped, for the question is simply this, * Shall our 
State legislatures be allowed to take that which is not 
their own, to turn it from its original use and apply it 
to such ends or purposes as they, in their discretions, 
shall see fit V Sir, you may destroy this little insti- 
tution, it is weak ; it is in your hands ! I know it is 
one of the lesser lights in the literary horizon of our 
country. You may put it out. But if you do so, you 
must carry through your work. You must extin- 
guish, one after another, all those great lights of 
science which for more than a century have thrown 
their radiance over our land ! It is, sir, as I have 
said, a small college, and yet there are those who love 
it. Sir, I know not how others may feel ; but for 
myself, when I see my Alma Mater surrounded, like 
r in the Senate House, by those who are reiter- 
ating stab upon stab, I would not, for this right hand, 
have her turn to me and say, et lu quoque, mi fili, and 
thou, too, my son." The court room was moved to 
tears, for Webster was too noble a soul not to be filled 
with emotion himself when defending the school at 
which he studied, and too great an orator to feebly 
present his cause. 

In the same year, 1818, the great case of McCullocl^ 
against the State of Maryland,* came before the Su- 

* 4 Wheaton, 316. 



132 THE SUPREME COURT. 

preme Court. The United States Bank established a 
branch in Baltimore, whose cashier, Mr. McCulloclf, 
was sued by the State for taxes. The State courts de- 
ciding against the bank, the case was carried to the 
Supreme Court. The Hon. Theophilus Parsons thinks 
that Chief Justice Marshall's opinion in that case — in 
which the court concurred — is the finest specimen of 
judicial logic known to history. It does not detract 
from a judge who for thirty-five years sat upon the 
supreme bench, loved and admired by all, to say that 
his decision was aided by the speeches of Wirt, Web- 
ster and Wm. Pinckney, who was one of the greatest 
lawyers of the present century. 

In that case, the court held that if the State of 
Maryland could tax the United States Bank it could 
destroy it ; that Congress, having control of the purse 
and sword of the nation, was authorized to pass all 
laws necessary and proper for the exercise of its pow- 
ers. In a word, the decision was that the United 
States Bank was constitutionally established, and that 
a State could not exercise a power that might destroy 
a National institution. The Bank did not pay the 
tax. 

In the case of Cohens against the State of Virginia,* 
it was held that the Supreme Court could exercise ju- 
risdiction when only one of the parties to the suit was 
a State, the other a citizen of that State ; and, in the 
exercise of its appelate jurisdiction, it could revise 
the judgment of a State court in a case arising under 
the laws, treaties and Constitution of the United States. 

* 6 Wheaton, 264. 



I II 1 Ki .n BTICE m LBflB M.I.. L38 

Th€ city of Washington, by authority of Congi 

established B lottery. Cohen was indicted at Norfolk, 
Virginia, for Belling lottery tickets, contrary to the 

State law. In defense, he plead the act of Congress 
permitting the lottery, but the Supreme Court held, 
upon appeal to it, that the State law must prevail. 
The argument of the court, by which it maintained 
its jurisdiction of the case, is of most importance : 
" We think," said Marshall, "a case arising under the 
Constitution, or laws of the United States, is cogni- 
zable in the courts of the Union whoever may be the 
parties to that case. The laws must be executed by 
individuals acting within the several States. If these 
individuals may be exposed to penalties, and if the 
courts of the Union cannot correct the judgments by 
which these penalties may be enforced, the course of 
the government may be at any time arrested by the 
will of one of its members. Each member will possess 
a veto on the will of the whole. These States are mem- 
bers of one great empire — for some purposes sover- 
eign, for some purposes subordinate. * * * The 
judicial department can decide on the validity of the 

< Constitution or law of a State if it be repugnant to the 
Constitution or law of the United States. Is it unrea- 
sonable that it should be also empowered to decide on 
the judgment of a State tribunal enforcing an uncon- 
stitutional law? The words of the United States 

< institution must prevail."* 

In the case of Osborn f against the United States 
Bank, Marshall probably made one of his most liberal 

* Lives of Chief Justices, by Flanders, vol. ii., p. 454. 
f 9 Wheaton, 738 ; 12 Wbeaton, 419. 



134 THE SUPREME COURT. 

decisions. He there held that unless a State were 
named as defendant on the record, it could not cite the 
Eleventh amendment to bar the jurisdiction of the 
courts of the Union. Thus the courts of the Union 
have jurisdiction where the State is indirectly a party 
in consequence of her agents acting by her order and 
substituted in her place. Otherwise, says Marshall, 
the agents of the State may inhibit the work of the 
mail carrier, the collector, the marshal, the recruiting 
officer, and the Federal courts must submit while the 
agents of the State obstruct the important work of the 
nation. 

The State of Maryland attempted to make Brown,* an 
importer of foreign articles, take out a State license 
before selling a bale or package so imported. Brown 
refused to take out the license and appealed to the 
Supreme Court, which held that, while in the original 
form or package in which the goods were imported, a 
tax upon them is too plainly a duty on imports to 
escape the prohibition in the Constitution. The 
State law was not enforced. 

The application of steam to the navigation of our 
rivers made them more valuable. New York granted 
to Eobt. K. Livingston and Kobert Fulton the exclu- 
sive privilege of navigating her waters by steamboats. 
They sold part of their waters to the defendant in the 
great case of Gibbons against Ogden.f Gibbons 
claimed the right to navigate the waters of New York 
under the laws of Congress, but the New York courts 

* Thurlow vs. Mass., Fletcher vs. R. I., Pierce vs N. H.; 5 
Howard, 504. 
f 9 Wheaton, pp. 1-240. 



CHIEF JU8TI01 TANEY. 186 

deciding in favor of Qgden'fl exclusive right, Qib- 

bODfl appealed to the Tinted States Supreme Court. 

That court held that the congressional powers to 
regulate commerce includes the regulation of naviga- 
tion, and that the laws of New York were held to 
conflict with the laws of Congress, under which 
Gibbons held his coasting license. Congress has the 
exclusive right to regulate commerce in all its forms on 
all the navigable waters of the United States without 
any monopoly, restraint or interference created by 
State legislation, unless that State legislation affects 
only different parts of the same State and extends to 
no other State* 

But soon came the days of Chief Justice Taney, who 
— Federalist as he was — favored a strict construction 
of the powers granted to the national government, 
and permitted a New York statute to require the master 
of every vessel upon arriving in the port of New York, 
to report in writing respecting his passengers, within 
twenty-four hours of his arrival. The State was thus 
enabled to tax the passengers. " This," says Taney, 
u was not a regulation of commerce, but a regulation 
of police, persons not being the subject of commerce, 
not being imported goods, the States may tax them."f 

The same question arose about ten years after 
Chief Justice Taney's first decision on the power of 
Congress to regulate commerce and then (1849) the 
majority of the court sustained Marshall's opinion in 
the case of Gibbons against Ogden, and Taney's opin- 
ion was merely one of dissent. 

* Const., Art. i., sec. 8.—" Among the several States." 
t 7 Howard. 



136 THE SUPREME COURT. 

Other decisions in the days of Taney almost suc- 
ceeded in placing the ban of uncertainty upon all 
judicial interpretation of the Constitution. 

In the case of Craig against the State of Missouri,* 
an act of that State establishing loan offices and au- 
thorizing the issue of certificates of stock, receivable in 
discharge of taxes or debts due to the State, was de- 
clared repugnant to that clause of the Constitution 
which prohibits the States from emitting bills of 
credit. Although called certificates of stock, they 
were held by the court to be the kind of circulating 
paper which a State was forbidden to issue. But 
when Kentucky (Briscoe vs. Bank of the State of 
Kentucky) issued paper from its bank, established 
" in the name and behalf of the Commonwealth of 
Kentucky," Chief Justice Taney and the majority of 
the court held that the States were only prohibited 
from emitting such paper as was denominated bills of 
credit before and at the time of the adoption of the 
Constitution. That same Kentucky case had been 
argued before Chief Justice Marshall, and he and a 
majority of the court were of opinion that the act was 
unconstitutional and void. Marshall would prohibit 
the States from uttering any paper in the nature of 
bills of credit; Taney would permit them to issue 
almost any kind of paper, so it was not called a bill of 
credit. Marshall prohibited the thing, Taney the 
name. 

The Charles Kiver Bridge held its franchises under 
the Massachusetts Legislature. It held that, as a 

* 4 Peters, 411. 



( IIIKF JT7STI0I TANEY. 137 

corporation, it had in perpetuity the exclusive right 
t and maintain a bridge over the Charles river, 
and receive tolls, and that the act of the Legislature of 
Massachusetts which authorized the erection of the 
Warren bridge — a free bridge over the same river — 
impaired the implied contract contained in the charter 
of the Charles River Bridge, not to authorize another 
such structure. Did the charter of this new bridge im- 
pair this implied contract? 

Chief Justice Taney held that there was no such 
implied contract, that public grants must be construed 
strictly, and that nothing passes from the States by im- 
plication, that what they do not give away they reserve 
to themselves, and therefore the charter of the Warren 
bridge was constitutional, since no contract had been 
impaired by granting it. 

The decisions of the Supreme Court in the cases 
that came before it a few years after the death of 
Marshall, created alarm in the minds of such eminent 
men as Story and Kent, lest the Judiciary would per- 
mit the supremacy of the national government to 
succumb to the subordinate power of the States and 
the Constitution itself to become a mere dead letter. 

Before the death of Chief Justice Taney, in Octo- 
ber, 1864, he perceived that the tribunal in which he 
presided had become the weakest branch of the gov- 
ernment, and that in attempting to resist the tide of 
popular opinion on the question of slavery, it had 
become almost impotent even in its appropriate sphere. 
The present importance of that high tribunal is due 
to its ability, impartiality and the reverence of the 
American people for its highest oracle of the law. 



138 



139 



J 40 



CHAPTER X. 



X — THE JUDICIARY — CHIEF JUSTICE TANEY. 



The decisions of the Supreme Court from 1835 to 
1864, upon constitutional questions, are numerous and 
important. Although Chief Justice Taney's opinion 
was often one of dissent, probably the best way to trace 
the action of the court, would be to examine his 
opinions as a judge. 

Appointed by President Jackson, of whom he was a 
warm political and personal friend, Taney had a 
vigorous, independent mind, stored with legal and 
political knowledge, but with little else. On account 
of his eminence as a lawyer and his devotion to duty 
as he saw it, his opinions as a judge will always be 
entitled to consideration. 

When an impartial history of his life shall have 
been written, it may be seen that his faults were few, 
but that misfortune had placed him in opposition to 
an overwhelming popular sentiment. Descended from 
slave-holding ancestors, he had little sympathy with 
the Abolitionists, and for his opinions upon questions 
that involved the rights of the negro, he has been 
most bitterly maligned. A devout Roman Catholic in 
religion, in his private life, he was kind, loving and 
happy, an illustrious example of a zealous, pious 
man. 



142 THE SUPREME COURT. 

A Federalist, with Republican friends and asso- 
ciates, few of his opinions favored liberal construction, 
and his influence on the court tended toward national 
disintegration. * 

One of the earlier cases that came before Chief 
Justice Taney, where constitutional questions were 
involved, was the suit of Rhode Island against Massa- 
chusetts for the recovery of political sovereignty and 
jurisdiction over about one hundred square miles of 
territory, with about five thousand inhabitants. Massa- 
chusetts moved to dismiss the bill in equity against 
her, because (1) the Supreme Court had not jurisdic- 
tion of the case, (2) the defendant was a sovereign 
State, and (3) because by a judicial decree sovereignty 
and jurisdiction cannot be recovered. The case was 
ten years in court, and in 1846 the court held that 
Rhode Island did not prove a mistake in the boundary 
line, and the rightful possession of Massachusetts for 
two centuries, could not now be disturbed. During the 
whole controversy Taney held that the Supreme Court 
had no jurisdiction over questions involving political 
rights — that being a subject for the control of Con- 
gress. The decision was of great importance to the 
majority in Congress in the recent days of Recon- 
struction. 

The corporation cases f established the principle 
that the corporations of one State, created by statute, 
within its territorial limits, are permitted by the 
comity of nations to make contracts in the other 
States and sue in their courts. "The States," said 

* Tyler's Life of Taney. 

f Bank of Augusta vs. Earle, 1839. 



CHIEF JTJ8TIC1 I \m:v. 143 

Taney, "have adopted toward each other the laws of 
comity in their fullest extent." In 1S47, * this prin- 
ciple shaped Taney's decision when he held that a 
discharge of a debtor by a State insolvent law, was a 
discharge of a debt due to a citizen of another State, 
although Marshall had decided otherwise. 

What the comity of nations effected, in Taney's 
opinion, now is accomplished by the United States 
bankrupt law, which aims at a just and equitable dis- 
charge of the unfortunate debtor. 

In 1841, came before the Supreme Court the case of 
Priggf against the State of Pennsylvania, in which 
arose the question of the validity of State laws pro- 
hibiting the taking and carrying away of a negro or 
mulatto by force and violence out of the State. The 
agitation that resulted in the abolition of slavery had 
begun, and the legality of the State law which Prigg 
had violated was opposed by the frieids of slavery and 
supported by eloquent counsel in behalf of the Com- 
monwealth. Mr. Justice Story denied the validity of 
the State law on the ground that the Constitution 
places the remedy for fugitives from labor exclusively 
in Congress. Taney went further and held that the 
States had power also to pass laws to aid in capturing 
fugitives. 

Here lies a fundamental principle of construction 
with Taney, and it has prevailed. He held that the 
States could aid the Federal government. It is now 
settled that where State legislation is not in conflict 
with Federal laws on the same subject nor inconsistent 

* Cook w. Moffat. 

t Prigg m. Penna., 16 Peters, 539. 



144 THE SUPREME COURT. 

with Federal legislation, the States can pass laws on 
subjects of national legislation. The States are sover- 
eign in every thing that has not been taken away from 
them. 

In 1840, came before the Supreme Court the Habeas 
corpus case known as Holmes vs. Jennison. * Governor 
Jennison, of Vermont, at the instance of the Cana- 
dian government, commanded a sheriff to arrest 
Holmes and take him to Canada. Holmes sued out a 
writ of Habeas corpus from the Supreme Court of 
Vermont, which held that the Governor had authority 
to issue the warrant. After an argument that went 
into the questions of foreign intercourse, State and 
national jurisdiction, the majority of the court held 
that the Supreme Court of Vermont had jurisdiction. 
Taney,f however, held that foreign intercourse belongs 
by express grant to the Federal government and that 
the States have no jurisdiction in foreign affairs. 

In January, 1847, there came from Massachusetts, 
Khode Island and New Hampshire, what were known 
as the license cases, % in which it was decided that the 
States can regulate or prohibit the retail of wines and 
spirits which Congress has authorized to be imported 
from foreign countries. "But," says Taney, "the 
States could not obstruct the importation or prohibit 
the sale in the original cask in the hands of the im- 
porter. When an import becomes mixed with the 
general property of the State, it is beyond the power 
of Congress in regulating commerce, and within the 

* (Story), McLean, Wayne, Taney, 
f 14 Peters. 
t 5 Howard. 



CHIEF JUSTICE TANKY. 14") 

taxing power of the State. Tims the courts deter- 
mine where Federal jurisdiction ends and Stale 
begins. 

In the Liceme cases, and also the passenger cases * of 
1849, Taney applied his theory of construction, that 
our political system is a co-operative one on the part 
of the States in aid of the Federal government. 

The passenger cases were argued several times for 
the benefit of the court, which finally by a majority, 
held that the power to regulate commerce is exclusively 
I in Congress, and that a tax upon passengers 
arriving in a port, by the State in which they arrive, 
is a regulation of commerce — both of which proposi- 
tions Taney denied. 

The passenger cases occupy 290 pages in the seventh 
of Howard's Reports, and contain a thorough discus- 
sion of the powers of Congress and the rights of the 
State in regard to commerce. "A tax upon passengers 
arriving in vessels," said Mr. Justice Grier, iC pro- 
hibits the emigration of foreigners to other States, 
taxes commerce and is not a police regulation of the 
State ;" and thus New York and Massachusetts had to 
submit to the superior power of Congress. 

In 1849, came before the Supreme Court the case of 
Luther against Borden, f in which an attempt was made 
to have that court decide which one of the two rival 
governments in Rhode Island was the legitimate one. 
Although the case itself was the justification of an 
ordinary trespass, yet the remote questions involved 
the great problem of changing a form of government. 

* 7 Howard. 
f 7 Howard. 



146 THE SUPREME COURT. 

While the court declared that political questions are 
to be decided by the political department of the gov- 
ernment, it pointed out the three recognized methods 
of changing a form of government as (1) the change by 
revolution, (2) by the method pointed out in the Con- 
stitution itself, (3) and by a law authorizing the 
change in a form of government. 

Whatever might be the opinion of individual mem- 
bers of the court, the Constitution * empowers 
Congress to decide what government is the established 
one in the State. 

"The high power," said Taney, "has been con- 
ferred on this court of passing judgment on the acts of 
the State sovereignties, and upon the legislative and 
executive branches of the Federal government, and of 
determining whether they are beyond the limits of 
power marked out for them respectively by the Con- 
stitution of the United States. We pass not into dis- 
cussions that belong to other forums." 

The political department has always determined 
whether the proposed constitution or amendment was 
ratified or not by the people of the State, or of the 
United States, and the judicial power has followed its 
decision. 

In 1851, the case of the Genesee Chief called forth 
from Taney probably the most liberal decision of his 
judicial career. By the law of England, maritime 
jurisdiction extended only over tide water. In 1825, 
our Supreme Court had decided that the maritime 
jurisdiction of the Federal courts, was also limited by 
the ebb and flow of the tide. However, Congress in 

* Art. iv., sec. 4. 



( H1KF JUSIIGI TANEY. 147 

1 an act extending the admiralty jurisdic- 
tion over the lakes and connecting navigable waters of 
the nation. The question then arose, was that Act 
authorized by the Constitution. If not, then the Fed- 
eral courts had no jurisdiction over a suit for damages 
against the Genesee Chief, and the Act of Congress 
attempting to give the Federal courts admiralty juris- 
diction over Lake Ontario and our great rivers was a 
nullity. " It is evident/' said the Chief Justice, 
" that a definition that would at this day limit public 
rivers in this country to tide water rivers is inadmissi- 
ble. We have thousands of miles of public navigable 
waters in which there is no tide. And certainly there 
can be no reason for admiralty power over a public 
tide-water which does not apply with equal force to 
any other public water used for commercial purposes 
and foreign trade. The decision limiting admiralty 
jurisdiction to tide water was founded in error and it 
is not our duty to perpetuate it." 

On the 6th of March, 1857, Chief Justice Taney 
gave the decision of the Supreme Court in the case of 
Scott * against Sanford, known as the Dred Scott case. 
That case is so intimately connected with the last 
three amendments to the Constitution, and formed so 
marked an epoch in the history of that court that it 
must be noticed. 

f " The great question involved in the case was 
whether it be competent for the Congress of the United 
States, directly or indirectly, to exclude slavery from 
the territories of the Union. The Supreme Court 

* 19 Howard. 

f Tyler's Life of Taney, p. 360. 



148 THE SUPREME COURT. 

decided that it is not. Six of the eight judges 
assenting : McLean and Curtis dissented. 

The opinion of the court is based upon the doctrine 
that when the American colonies were settled, prop- 
erty in African negroes was recognized by the public 
law of Europe, and that trade in negros as merchand- 
ise was regulated by public treaties and by municipal 
legislation. 

England, in 1713, obtained by the treaty of Utrecht 
the almost entire control of the trade of supplying 
^he American colonies with slaves. The people of 
England, dissatisfied with the monopoly by a few 
royal favorites of such a profitable trade, forced Par- 
liament to open it to all the subjects of Britain. The 
common law of England, or rather the navigation act, 
placed negroes on the same footing as property, and 
included them with rum, goods and merchandise. That 
States of Europe in this phase of public law and 
national practice introduced slavery into their Ameri- 
can colonies, and established property in negroes as 
recognized by public law, just as slavery on the con- 
tinent of Europe had always been recognized by the 
law of nations. That when the Constitution of the 
United States was formed, negroes were just as much 
property as any other goods and merchandise. 

The Constitution, recognizing and protecting prop- 
erty in slaves, the master had as much right to take 
his slaves as any other property, into the common 
territory of the United States held by the government 
in trust for all citizens ; and that as the Missouri Com- 
promise was in violation of this right, it was null and 



CHIEF JUSTICE TANEY. 149 

void. And that negroes, being considered by the 
Constitution as only property, could not, when freed by 
their masters, thereby become citizens of the United 
States. 

Thus you can see the grounds upon which Taney 
held that the negro had no rights which the white man 
was bound to respect. It was not a personal opinion 
of the judge, but a statement of how the law stood, and 
it remained for a great civil war and an amended 
Constitution to change the law. 

The Dred Scott decision added fuel to the anti- 
slavery agitation. The State of Wisconsin openly 
defied the Supreme Court in its attempt to enforce the 
punishment of Sherman M. Booth, who had been con- 
victed of violating the fugitive slave law of 1850. The 
Supreme court of Wisconsin on a writ of Habeas 
corpus liberated Booth when imprisoned by a Federal 
court, and the legislature of that State passed resolu- 
tions denying that the United States courts have the 
exclusive right to determine questions of Federal 
law.* 

Two years after the case of Booth, President Lin- 
coln's first inaugural address (1861) indicated the 
sentiment that prevailed with the dominant party 
toward the Supreme Court. 

"The candid citizen must confess,' ) said Mr. Lin- 
coln, "that if the policy of the government upon 
vital questions, affecting the whole people, is to be 
irrevocably fixed by decisions of the Supreme Court 
the instant they are made in ordinary litigation be- 
tween parties in personal actions, the people will have 

* Page 398 of Tyler's Life of Taney. 



150 THE SUPREME COURT. 

ceased to be their own rulers, having to that extent 
practically resigned their government into the hands 
of that eminent tribunal." 

With the war, prevailed the maxim that the safety 
of the people is the highest law, and the venerable 
Chief Justice files his opinion in the Merryman case. 
A general in the army had caused the arrest of John 
Merryman and had him confined in Fort McHenry. 
Taney issued a writ of Habeas corpus to examine into 
the commitment of Merryman. The commander of 
the fort refused to deliver up his prisoner, answering 
that he had been authorized by President Lincoln to 
suspend the writ of Habeas corpus. 

The judge files his opinion to the effect that none 
but Congress can judge that the emergency has arisen 
when the public safety demands the suspension of that 
sacred writ ; that if such military usurpation is legal, 
then every citizen holds his life, liberty and property 
at the will and pleasure of the army officer in whose 
military district he may chance to be found. 

Since then, the courts have held that even when the 
writs of Habeas corpus is suspended, it issues and the 
court decides whether the defendant is entitled to the 
benefit of the writ, when the prisoner has been brought 
into court. 

Little interest need be taken in judicial proceedings 
during a great civil war, for inter arma legis silent. 
With the return of peace new interests sprung up and 
new questions for adjudication. 



151 



152 



153 



154 



CHAPTER XT. 



XI. — THE JUDICIARY — CHIEF JUSTICE CHASE. 



Salmon P. Chase was appointed Chief Justice, to 
preside in a court that had become distinguished in 
history, and honored by the noted men who had pre- 
sided in it, as well as by the renowned lawyers who 
had plead causes before the highest tribunal of the 
nation. The system of Federal law, too, of which the 
Supreme Court is the highest exponent, had become 
pretty well settled, and men were on the bench as 
judges who by the long period of their judicial lives 
had become familiar with almost every question for 
litigation in that court. 

The time had gone by for one man to write or dic- 
tate the opinion of the court, especially if that man 
were but fresh from the field of politics, as was Mr. 
Chase, and henceforth the opinions of the court are 
more truly the opinions of a number of competent 
judges than the irresistible conclusions of one profound 
mind. 

The life of Mr. Chase had been passed chiefly in 
politics, and he had adopted a theory of our Federal 
government which as judge he did not fail to carry 
out. As a statesman, he aimed to divorce the Federal 
government from all connection with slavery, to con- 
fine its action within constitutional limits, to uphold 
the rights of individuals whether black or white, as 



156 THE SUPREME COURT. 

well as the rights of the States, and to foster all the 
great interests of the country. 

It is noticeable that upon the new questions that 
continued to arise under the peculiar circumstances of 
the civil war and the abolition of slavery, the opinion 
of the court is generally given by one of the associate 
judges. It was the custom, in the earlier history of 
the court, for the Chief Justice to appoint one of the 
associate justices to deliver the opinion of the court, 
even when the majority of the judges differed from 
the Chief Justice upon what the decision of the court 
should be. It is said that Chief Justices Marshall and 
Taney took advantage of this privilege, and, while ap- 
pointing the weakest man of the majority to write the 
opinion of the court, they themselves wrote the dissent- 
ing opinion, which embodied all the force and logic of 
their peculiar powers to weaken the opinion of the 
court. 

In later times, however, the majority of the court 
have adopted the plan of choosing whatever judge 
they wish to write the opinion of the court, and thus 
the dissenting judges must encounter the opinion of 
the most competent man of the majority. 

Upon the questions that came before the Supreme 
Court since December 6, 1869, the opinions of the court 
have generally favored consolidation and the extension 
of Federal power. 

Upon the question of taxation, for example, it has 
been fully settled that the States cannot tax any of the 
means used by the Federal government to carry on its 
affairs, while Congress can tax all the property of citi- 
zens and the salaries of State officials. It has been 



CHIEF JUSTICE OHA0B. 157 

decided, however, that Congress cannot tax the salary 
of a State judge,* although it can tax the machinery 
of the State courts. 

One of the most important cases that came before 
the Supreme Court in the days of Chief Justice Chase 
was that of ex parte Milligan. f It involved the very 
framework of the government and the fundamental 
principles of American liberty. 

Milligan, a citizen of Indiana, was condemned by a 
military commission to be hanged for acts of disloy- 
alty to the United States government. The United 
- Circuit Court of Indiana refused to discharge 
Milligan on a writ of Habeas corpus, and the case was 
appealed to rhe Supreme Court. 

After a thorough argument and careful considera- 
tion, the court decided, among other things, that the 
guarantee of trial by jury contained in the Constitu- 
tion was intended for a state of war as well as a 
state of peace, that while the Federal courts were 
open for the trial of offences and the redress of griev- 
ances, the usages of war could not under the Constitu- 
tion afford any sanction for the trial there of a citizen 
in civil life not connected with the military or naval 
service by a military tribunal for any offense what- 
ever, that even when the privilege of the writ of 
Habeas corpus is suspended, a citizen cannot be tried, 
convicted or sentenced otherwise than by the ordinary 
courts of law. 

The opinion of the Chief Justice, in which he main- 
tained the power of Congress to create a military 

* The Collector vs. Way, 11 Wallace, 113. 
t 4 Wallace, 3. 



158 THE SUPREME COURT. 

commission to try offenders during war, is an exam- 
ple of the extent to which a liberal construction of the 
war powers contained in the Constitution may go. 
Happily, the majority of the court did not think that 
Congress has the power to set aside the courts and try 
men by a picked set of commissioners. 

The case of ex parte Milligan defined the three 
kinds of military jurisdiction known to our govern- 
ment. Military law is the acts of Congress providing 
for the government of the national forces. Military 
government partially supersedes the local law, and is 
exercised by a military commander under the direc- 
tion of the President, with the express or implied 
sanction of Congress. Martial law is the will of an 
individual, becoming the law of a locality where or- 
dinary law no longer secures the public safety and 
private rights. It is called into exercise by the Presi- 
dent or Congress in times of peril. 

In the case of ex parte Garland,* the prohibition 
upon Congress, of passing bills of attainder and ex 
post facto laws, were enforced. Congress passed a law 
preventing attorneys from practising law in the United 
States courts unless they should have taken what is 
known as the " iron clad oath." But, said the Su- 
preme Court, the act partakes of the nature of a bill 
of pains and penalties, and is included in the prohi- 
bition against the passage of bills of attainder. The 
act, too, was held to add a new punishment to that 
before prescribed for treason, and thus was an ex post 
facto law. 

* 4 Wallace. 333. 



CHIEF JTOflCE en 159 

The Legal Tender cases form an important chapter 
in the history of the Supreme Court. On the 7ih of 
February, 1870, Chief Justice Chase delivered the 
opinion of the court in the case of Hepburn * vs. 
Griswold, in which the acts of Congress making notes 
or bills of credit a legal tender in payment of pre- 
existing debts, were declared unconstitutional. 

The grounds of the opinion were that the words, 
"all laws necessary and proper for carrying into execu- 
tion n powers expressly granted or vested, have in 
the Constitution, a sense equivalent to that of the 
words "laws not absolutely necessary, indeed but 
appropriate, and the legal tender acts are not a means 
appropriate, plainly adapted or really calculated to 
carry into effect express power vested in Congress, but 
are inconsistent with the spirit of the Constitution 
and are prohibited by it ;" that, prior to the 25th of 
February, 1862, all contracts for the payment of money 
not expressly stipulating otherwise, were in legal effect 
contracts for the payment of coin, and under the 
Constitution the parties are bound to pay the sums 
due in coin, notwithstanding the acts of Congress, 
which make United States notes a legal tender in pay- 
ment of such debts. 

The decision in the case of Hepburn vs. Griswold, 
in which a debt payable in " dollars " was held to be 
payable in coin, surprised and alarmed many. The 
very Chief Justice who delivered the opinion had 
been Secretary of the Treasury when the legal tender 
acts w T ere passed, but upon the return of peace he 

* 8 Wallace, G26. 



160 THE SUPREME COURT. 

appears to have given his decision as a judge after the 
most careful and honest deliberation. 

Before the December term of 1870, the President 
appointed Wm. Strong, of Pennsylvania, and J. P. 
Bradley, of New Jersey, Associate Judges of the 
Supreme Court, whereupon two cases * involving the 
constitutionality of the legal tender acts were ordered 
to be re-argued. 

Mr. Justice Strong, on the 15th of January, 1872 
delivered the opinion of the court in which the 
opinion in the case of Hepburn vs. Griswold was 
over- ruled after an existence of nearly two years. 

" We over-rule," f said Mr. Justice Strong, " so 
much of what was decided in Hepburn vs. Griswold 
as ruled the acts unwarranted by the Constitution, so 
far as they apply to contracts made before their enact- 
ment." 

The law is now settled that an Act of Congress 
making promise-to-pay dollars as legal a tender as 
coined dollars in payment of pre-existing debts, is a 
means appropriate and plainly adapted to the exercise 
of powers expressly granted by the Constitution. 

Thus by the resignation of one judge — Mr. Grier 
— and the appointment of two new ones, the powers 
of Congress were upheld in its control of the finances 
of the nation. 

The Federal courts have jurisdiction of all ad- 
miralty and maritime cases, and let us glance at their 
decisions in such causes. The admiralty law, like 
equity proceedings, not having its origin in the Eng- 

* Knox vs. Lee and Parker vs. Davis. 
t 12 Wallace, 457. 



CHIEF JUSTICE CHASE. 10)1 

lish common law, does not provide for jury trials, but 
makes its decrees by the orders of a judge, the facts 
usually being admitted or found by a commissioner 
appointed for the purpose. Thus admiralty and mari- 
time rights are settled by the rulings of the courts. 

It was not until 1871 that the Supreme Court went 
so far as to say that the United States District Court 
has exclusively the power to proceed in rem, that is, 
against the vessel and adjudicate against it as the 
defendant. "The common law remedies," said Mr. 
Justice Clifford, * "are not appropriate nor competent 
to enforce a maritime lien by a proceeding against the 
L. M That the State legislatures have authority to 
create a maritime lien has become the ruling of the 
Supreme Court, yet the State courts cannot enforce 
that lien by proceeding in rem. 

In Mr. Justice Story's day the court held f that 
the State laws in admiralty affairs should be recog- 
nized and enforced by the Federal courts. Thus the 
Federal courts in time have become exclusive and 
absolute in the departments in which the Constitution 
by a liberal construction permits them to have exclu- 
sive jurisdiction. J 

The Slaughter-house cases Z have called forth the 
most important recent constitutional decision from the 
Supreme Court. 

The legislature of Louisiana, on the 8th of March, 
1869, passed an act granting to a corporation, created 

* 11 Wallace, 185; Leon vs. Galceron. 

f The Gen. Smith. 

X The Lattawana, 21 Wallace, 558. 

3 16 Wallace, 86 ; Butchers' Benevolent Association of New 
Orleans vs. The Crescent City Live Stock Landing and 
Slaughter-house Co. 



162 THE SUPREME COURT. 

by it, the exclusive right, for twenty-five years, to have 
and maintain slaughter-houses, landings for cattle and 
yards for inclosing cattle intended for sale or slaughter 
within the parishes of Orleans, Jefferson and St. Ber- 
nard — 1,154 square miles of territory, having a popu- 
lation of nearly 300,000, and prohibiting all other 
persons from building, keeping or having slaughter- 
houses, landings for cattle, and yards for cattle intended 
for sale or slaughter within those limits ; and authorizing 
the corporation to exact certain fees and charges for 
the privileges of lauding and slaughtering upon its 
premises. After the most thorough argument and 
deliberation it was held that this monopoly which 
destroyed the business of hundreds of citizens, was not 
a law that abridged the privileges or immunities of 
citizens of the United States ; that the Parliament of 
Great Britain and the State legislatures of this 
country, have always exercised the power of granting 
exclusive rights when they were necessary and proper 
to effectuate a purpose which had in view the public 
good, and the power here exercised is of that class and 
has until now never been denied. 

The slaughter-house monopoly, in fine, was held to 
be the exercise of the power of the legislature to make 
police regulations — a power behind which the State 
takes shelter to pass many oppressive laws. 

Justices Chase, Field, Swayne and Bradley dissented, 
believing that the Fourteenth amendment, which 
declares that no State shall make or enforce any law 
which shall abridge the privileges and immunities of 
citizens of the United States, authorized the court 
to declare the act void, and that one of the privileges 



CHIEF JUSTICE CHASE. 1 68 

and immunities of citizens is to follow whatever law- 
ful employment he chooe 

But the majority of the court held that the history 
of the last three amendments to the Constitution 
shows, that they were intended to free the African 
race, secure and perpetuate that freedom, and protect 
it from the oppressions of the white men who had 
been slave owners. 

The privileges and immunities of citizens of the 
United States are those which arise out of the nature 
and essential character of the national government, 
the provisions of its Constitution, or its laws and 
treaties made in pursuance thereof; and it is these 
which are placed under the protection of Congress by 
this clause of the Fourteenth amendment. 

What the privileges and immunities of citizens of 
the United States are which no State can abridge, the 
court declined to say. It enumerated a few merely by 
way of example. Such as the right to go to Wash- 
ington to a-sert a claim upon the government, * to 
demand the care and protection of the Federal gov- 
ernment, the privilege of the writ of Habeas corpus, 
right to use the navigable waters of the United States, 
are some of the privileges and immunities of the 
citizens of the United States. Still less did the court 
attempt to define the privileges and immunities of the 
citizens of a State. 

The boundaries of State and national jurisdiction 
form a constant theme for the adjudication of the 
Supreme Court, and that it may preserve the happy 



* 6 Wallace, 36 ; Crandall vs. Nevada. 



164 THE SUPREME COURT. 

medium between consolidation on the one side, and the 
undue independence of the States on the other, is the 
hope of every good and patriotic citizen. 



105 



166 



CHAPTER XII. 



XII. — THE JUDICIARY — MORRISON R. WAITE, CHIEF 

JUSTICE FROM JANUARY 21, 1874, DOWN 

TO THE PRESENT TIME. 



On January 21, 1874, the Hon. Morrison E. Waite, 
of Ohio, was commissioned to fill the vacancy caused 
by the death of Chief Justice Chase in 1873. 

Of late years, the docket of the Supreme Court has 
been burdened with cases, and Congress has lessened 
the number of cases which can be taken there by en- 
larging the amount of money required to be in contro- 
versy to give the court jurisdiction. The power of 
Congress to order and establish inferior Federal courts 
and to regulate the appellate jurisdiction of the Su- 
preme Court, has given us the District and Circuit 
Courts and the Court of Claims. The two former 
were created by the Judiciary Act of 17S9 ; the latter 
was called into existence by the circumstances of the 
war of '61, and has jurisdiction of all claims founded 
upon any law of Congress, or upon any regulation of 
the executive department, or upon any contract with 
the United States, and claims referred to said court by 
either house of Congress ; of set-offs by the govern- 
ment against claimants against it; of relief sought by 
persons liable to pay money to the United States, and 
of claims for property destroyed by the government. 



168 THE SUPREME COURT. 

The Supreme Court has appellate jurisdiction from 
these three courts under certain rules. That court is 
also largely occupied by deciding upon matters brought 
there from the highest courts of the States, since Con- 
gress has enacted that "A final judgment or decree in 
any suit in the highest court of a State in which a de- 
cision in the suit could be had where is drawn in ques- 
tion the validity of a treaty or statute of or an author- 
ity exercised under the United States, and the decision 
is against their validity ; or where is drawn in ques- 
tion the validity of a statute of or an authority exer- 
cised under any State on the ground of their being re- 
pugnant to the Constitution, treaties or laws of the 
United States, and the decision is in favor of their 
validity ; or where any title, right or privilege, or im- 
munity is claimed under the Constitution, or any treaty 
or statute of or commission held, or authority exer- 
cised under the United States, and the decision is 
against the title, right, privilege or immunity set up 
or claimed by either party under such Constitution, 
treaty, statute, commission or authority, may be re- 
examined and reversecl or affirmed in the Supreme 
Court on a writ of error." 

Although in Federal affairs the Supreme Court has 
this high power, yet the laws of the several States, 
except where the Constitution, treaties or statutes of 
the United States otherwise require or provide, are re- 
garded as rules of decision in trials at common law in 
the courts of the United States in cases where they 
apply. It is enacted, loo, that the practice, pleadings, 
and forms and modes of proceeding in civil causes, 
other than equity and admirality causes in the dis- 



(II I FT JUSTICE WAITE. 169 

trict and circuit courts, shall conform as near as may 
be to the practice and pleadings and forms and modes 
of proceeding existing at the time in like causes in the 
courts of record of the State within which such dis- 
trict or circuit courts are held, any rules of court to the 
contrary notwithstanding. 

The mode of forming juries practiced in each State 
so far as such mode may be practical by the courts of 
the United States or the officers thereof, are followed 
in empannelling juries in Federal causes. 

No witness can be excluded from testifying on ac- 
count of color or interest; but in all other respects the 
laws of the State in which the court is held shall be 
the rules of decisions as to the competency of wit- 
nesses in the courts of the United States, in trials at 
common law and in equity and admirality. 

It is the settled law of the Federal courts that the 
Supreme Court of a State is the highest authority 
upon the construction to be placed upon the statutes of 
that State. The Federal courts follow the decisions of 
the State courts upon matters of local legislation and 
State law. Where the constitution and laws of a State 
have been construed differently at different times by 
the highest court of the State, the Supreme Court of 
the United States adopt the first decisions and reject 
the last. 

All of the recent decisions of the Federal Supreme 
Court are worthy of study, but let us glance at a few 
of the most important opinions on constitutional 
questions. 

The city of Topeka,* in Kansas, was authorized by 
* Loan Association vs. Topeka, 20 Wallace, Goo. 



170 THE SUPREME COURT. 

the State legislature to issue bonds to aid a manufac- 
turing enterprise in that city. The bonds were sold, 
and some of them purchased by citizens of Ohio. The 
city denied its liability, and the suit to recover the 
value of the bonds reached the Supreme Court, where 
the powers of the legislature to authorize taxation 
were discussed at length. 

It was held that a statute which authorizes towns to 
contract debts or ether obligations, payable in money, 
implies the duty to levy taxes to pay them, unless some 
other fund or source of payment is provided. If there 
is no power in the legislature which passed such a 
statute to authorize the levy of taxes in aid of the 
purpose for which the obligation is to be contracted, 
the statute is void, and so are the bonds or other forms 
of contract based on the statute. There is no such 
thing in the theory of our governments, State and 
national, as unlimited power in any of its branches. 
The executive, the legislative and the judicial depart- 
ments are all of limited and defined powers. There 
are limitations of such powers, which arise out of the 
essential nature of all free governments, implied re- 
servations of individual right*, without which the 
social compact could not exist, and which are respected 
by all governments entitled to the name. Among 
these is the limitation of the right of taxation, that it 
can only be used in aid of a public object— an object 
which is within the purpose for which governments 
are established. It cannot, therefore, be exercised in 
aid of enterprises strictly private, for the benefit of 
individuals, though in a remote or collateral way the 
local public may be benefited thereby. The line 



cmrr JUBTK B w.wtk. 171 

which distinguishes the public use for ^-li icli taxes 

may I ! from the private use for which they 

may not, i< Dot always easy to discern. A statute 
which authorizes a town to [sane its bonds in aid of a 

manufacturing enterprise of individuals, is void, be- 
cause the taxes necessary to pay the bonds would, if 
collected, be a transfer of the property of individuals 
to aid in the projects of gain and profit of others, and 
not for a public use in the proper sense of that term. 

lira. Va. Minor, * of Missouri, claimed the right to 
vote on the grounds that she was a native born free 
white citizen of the United States, over the age of 
twenty-one years. The Constitution of Missouri said 
that every male citizen of the United States shall be 
entited to vote. 

Happersett, the Registrar of voters, refused to reg- 
ister her as a lawful voter because she was a woman. 
The State courts refused to punish the registrar for his 
refusal, and the case was brought to the Supreme Court 
when the Chief Justice delivered the unanimous 
opinion of the court that the Constitution of the 
United States does not confer the right of suffrage on 
any one ; that the right of suffrage was not necessarily 
one of the privileges and immunities of citizenship 
before the adoption of the Fourteenth amendment, 
and that amendment does not add to those privileges 
and immunities ; that the word citizen is often used 
to convey the idea of membership in a nation ; that 
the elector or voter holds an office in the State which 
-tinct from the privileges and immunities of a 
citizen ; and that the office of elector never did 

* Minor vs. Happenett : 21 Wallace, 163. 



172 THE SUPREME COURT. 

embrace the whole body of the citizens of the States. 

It has since been held * that citizens are merely 
members of the political community to which they 
belong ; that there is in our political system a govern- 
ment of each of the several States and a government 
of the United States ; that the rights of a citizen under 
one government will be different from those he has 
under the other ; that the government of the United 
States, although, within the scope of its powers, it is 
supreme and beyond the States, can neither grant nor 
secure to its citizens rights or privileges which are not 
placed under its jurisdiction ; that the United States 
Constitution has not conferred the right of suffrage on 
any one. The right to vote in the States comes from 
the States. 

The powers f of Congress under the Fifteenth 
amendment may be applied to punish the wrongful 
refusal to receive the vote of a qualified elector at 
elections because of his " race, color or previous con- 
dition of servitude." The power of Congress to leg- 
islate on the subject of voting at State elections rests 
on the Fifteenth amendment. That amendment does 
not confer the right of suffrage. It enables Congress 
to prevent discrimination by the States when State 
laws discriminate against the citizen on account of 
"race, color or previous condition of servitude." 

The powers of Congress to regulate commerce with 
foreign nations and among the several States preven 
J the States from passing laws discriminating against 



* United States vs. Cruikshank, el al.\ 2 Otto, 542. 
f United States vs. Reese, et al.\ 2 Otto, 214. 
X Welton vs. Missouri ; 1 Otto, 275. 



CHIEF JUSTICE WAITE. 173 

the products of Other States, and if Congress passes no 
laws in regard to interstate commerce, then that com- 
merce is to be free. A license tax required to be paid to 
the State for the privilege of sellinggoods imported from 
another State is virtually a tax upon the goods them- 
selves and a regulation of commerce. A State tax 
thus discriminating against the goods of another State 
is void. 

A State statute * which imposes a burdensome and 
almost impossible condition on the ship-master as a 
pro-requisite to his landing his passengers with an 
alternative payment of a small sum of money for 
each one of them, is a tax on the ship owner for the 
right to land such passengers and in effect on the 
passengers themselves, since the ship-master makes 
them pay it in advance as part of their fare. Such a 
statute is a regulation of commerce, and when applied 
to foreign passengers is unconstitutional since Con- 
gress has the sole power to regulate commerce with 
foreign nations. The police power of the State will 
not enable it to tax or prohibit foreign or inter-State 
commerce.f 

The national banks are held to be under the exclu- 
sive control of Congress. The right of eminent do- 
main exists in the government of the United States, 
by which it can take private property X for public uses 
in any State to enable it to execute the powers confer- 
red upon it by the Constitution. Just compensation 

* Henderson et aL, vs. the Mayor of the City of New York ; 2 
Otto, 269. 
t Chy Lung vs. Freeman et ai.\ 2 Otto, 275. 
+ Kohl et a/., vs. U. S.; 1 Otto, 3G7. 



174 THE SUPREME COURT. 

must be made to the individual, and the property must 
be taken by due process of law. 

The laws of the United States are as much the law of 
the land in any State as State laws are, and although in 
their enforcement, exclusive jurisdiction may by Con- 
gress be given to the Federal courts, yet where such 
exclusive jurisdiction is not given or necessarily im- 
plied, the State courts may be resorted to.J Congress 
expressly gives the State courts jurisdiction in many 
Federal affairs, and thus receives the aid of the pow- 
ers of the States, in the enforcement of its laws. 

Standing by its former decisions, the guardian of the 
Constitution, yet meting out justice to every suitor, the 
National Judiciary commands the respect and admira- 
tion of all good men. 

$ Claflin vs. Houseman ; 3 Central Law Journal, 803. 



175 



176 



APPENDIX. 



CONSTITUTION 

OF THE 

United States of America.* 



We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquility, 
provide for the common defence, promote the general welfare, 
and secure the blessings of liberty to ourselves and our poster- 
ity, do ordain and establish this Constitution of the United 
States of America. [See 1 Wheat., 324. 4 Wheat., 403.J 

ARTICLE I. 

OF THE LEGISLATURE. 

Section I. All legislative powers herein granted, shall be 
vested in a Congress of the United States, which shall consist of 
a Senate and House of Representatives. 

op the house of representatives. 

Sec. II. 1. The House of Eepresentatives shall be composed of 
members chosen every second year by the people of the several 
States; and the electors in each State shall have the qualifica- 
tions requisite for electors of the most numerous branch of the 
State Legislature. 

QUALIFICATIONS OF MEMBERS. 

2. No person shall be a representative who shall not have at- 
tained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, 
be an inhabitant of that State in which he shall be chosen. 



♦This Constitution went Into operation on the first Wednesday in March, 1789. 
[5 HTieaf., 420.] 



178 APPENDIX. 

APPORTIONMENT OF REPRESENTATIVES AND DIRECT TAXES- 
CENSUS. 

3. Representatives and direct taxes shall be apportioned 
among the several States which may be included within this 
Union, according to their respective numbers, which shall be 
determined by adding to the whole number of free persons, in- 
cluding those bound to service for a term of years, and exclud- 
ing Indians not taxed, three-fifths of all other persons. The 
actual enumeration shall be made within three years after the 
first meeting of the Congress of the United States, and within 
every subsequent term of ten years, in such manner as they 
shall by law direct. The number of representatives shall not 
exceed one for every thirty thousand, but each State shall have 
at least one representative; and until such enumeration shall 
be made, the State of New Hampshire shall be entitled to 
choose three, Massachusetts eight, Rhode Island and Provi- 
dence Plantations one, Connecticut five, New York six, New 
Jersey four, Pennsylvania eight, Delaware one, Maryland six, 
Virginia ten, North Carolina five, South Carolina five, and 
Georgia three. [See 5 Wheat., 317.] 

VACANCIES. 

4. When vacancies happen in the representation from any 
State, the executive authority thereof shall issue writs of elec- 
tion to fill such vacancies. 

OP THEIR OFFICERS— IMPEACHMENT. 

5. The House of Representatives shall choose their Speaker, 
and other officers, and shall have the sole power of impeach- 
ment. 

OF THE SENATE. 

Sec. III. 1. The Senate of the United States shall be com- 
posed of two Senators from each State, chosen by the Legisla- 
ture thereof, for six years, and each Senator shall have one 
vote. [See 6 Wheat., 390.] 

THEIR CLASSES. 

2. Immediately after they shall be assembled, in consequence 
of the first election, they shall be divided as equally as may be 
into three classes. The seats of the Senators of the first class 



. i noir. l i 

•hall be vacate! .it th«> expiration of the second jw\ of the 

at the expiration Of the fourth y.-ar; au<l of the 

third class, at the expiration of the sixth y.-ar. so that 

third may be chosen every second fear. And if racanciea 

happen by resignation, or otherwise, during the recess of the 
tture of any State, the executive thereof may make 
temporary appointments until the next meeting of the Legis- 
lature, which shall then fill such vacancies. 

QUALIFICATIONS OF SENATORS. 

i person shall be a Senator who shall not have attained 
to the age of thirty years, and been nine years a citizen of the 
United States, and who shall not when elected be an inhabitant 
of that State for which he shall be chosen. 

OF THE VICE PRESIDENT. 

4. The Vice President of the United States shall be President 
of the Senate, but shall have no vote unless they be equally 
divided. 

• OF THE OFFICERS OF THE SENATE. 

5. The Senate shall choose their other officers, and also a Pres- 
ident pro tempore, in the absence of the Vice President, or 
when he shall exercise the office of President of the United 
States. 

OF IMPEACHMENT. 

6. The Senate shall have the sole power to try all impeach- 
ments. When sitting for that purpose they shall be on oath 
or affirmation: When the President of the United States is 
tried, the Chief Justice shall preside. And no person shall be 
convicted without the concurrence of two-thirds of the mem. 
bers present. 

7. Judgment, in cases of impeachment, shall not extend 
futher than to removal from office, and disqualification to hold 
and enjoy any office of honor, trust or profit, under the United 
States; but any party convicted shali, nevertheless, be liable 
and subject to indictment, trial, judgment and punishment, 
according to law. 

MANNER OF ELECTING MEMDERS OF CONGH 

IV. The times, places and manner of holding elections 
..ators and Representatives, shall be prescribed in each 



180 APPENDIX. 

State, by the Legislature thereof; but the Congress may, at 
any time, by law, make or alter such regulations, except as to 
the places of choosing Senators. 

OF THE MEETINGS OF CONGRESS. 

2. Congress shall assemble at least once in every year ; and 
such meetings shall be on the first Monday of December, unless 
they shall by law appoint a different day. 

POWERS OF EACH HOUSE. 

Sec. V. 1. Each House shall be the judge of the elections 
returns, and qualifications of its own members ; and a majority 
of each shall constitute a quorum to do business ; but a smaller 
number may adjourn from day to day, and may be authorized 
to compel the attendance of absent members, in such manner 
and under such penalties as each House may provide. 

EXPULSION. 

2. Each House may determine the rules of its proceedings, 
punish its members for disorderly behavior, and with the con- 
currence of two-thirds, expel a member. [See 1 HalVs Am. 
Law Journal, 459.] 

JOURNALS AND YEAS AND NAYS. 

3. Each House shall keep a journal of its proceedings, and 
from time to time publish the same, excepting such parts as 
may, in 6heir judgment, require secrecy ; and the yeas and nays 
of the members of either House, on any question, shall, at the 
desire of one-fifth of those present, be entered on the journal. 

OF ADJOURNMENT. 

4. Neither House, during the session of Congress, shall, with- 
out the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two Houses shall 
be sitting. 

COMPENSATION, PRIVILEGES AND INCAPACITIES OF MEMBERS. 

Sec VI. The Senators and Representatives shall receive a 
compensation for their services, to be ascertained by law, and 
paid out of the treasury of the United States. They shall, in 
all cases, except treason, felony and breach of the peace, be 



tmoN. 181 

pririleged from arrest daring their attendance at the Beaston ol 
their respective Houses, and in going to and returning from the 

same; and for any ipeecll or debate in either House, the J shall 
not be questioned in any other place. 

EXCLUSION FROM OFFICE. 

2. No Senator or Representative shall, during the time for 
which he was elected, be appointed to any civil office under the 
authority of the United States, which shall have been created, 
or the emoluments whereof shall have been increased, during 
such time; and no person holding any office under the United 
hall be a member of either House during his continu- 
ance in office. 

REVENUE BILLS. 

VII. 1. All bills for raising revenue shall originate in the 
House of Representatives ; but the Senate may propose or con- 
cur with amendments, as on other bills. 

MANNER OF PASSING BILLS AC. 

1. Every bill which shall have passed the House of Representa- 
tives and the Senate, shall, before it becomes a law, be presented 
to the President of the United States; if he approve, he shall 
sign it; but if not he shall return it, with his objections, to 
that House in which it shall have originated, who shall enter 
the objections at large on their journal, and proceed to re-con- 
sider it. If, after such re-consideration, two-thirds of that 
House shall agree to pass the bill.it shall be sent, together with 
the objections, to the other House, by which it shall likewise 
be re-considered, and if approved by two-thirds of that House, 
it shall become a law. But in all such cases the votes of both 
Houses shall be determined by yeas and nays, and the names 
of the persons voting for and against the bill shall be entered 
on the journal of each House respectively. If any bill shall 
not be returned by the President within ten days Sunday ex- 
cepted) after it shall have been presented to him, the same shall 
be a law, in like manner as if he had signed it. on n- 

M, by their adjournment prevent its return, in which cas»- it 
shall not be a law. 



182 APPENDIX. 

ORDERS, RESOLUTIONS AND VOTES. 

3. Every order, resolution, or vote, to which the concurrence 
of the Senate and House of Representatives may be necessary 
(except on the question of adjournment), shall be presented to 
the President of the United States, and before the same shall 
take effect, shall be approved by him, or, being disapproved by 
him, shall be re-passed by two-thirds of the Senate and House 
of Representatives, according to the rules and limitations pre- 
scribed in the case of a bill. 

GENERAL POWERS OF CONGRESS. 

Sec. VIII. The Congress shall have power : 

1. To lay and collect taxes, duties, imposts and excises, to pay 
the debts and provide for the common defence and general 
welfare of the United States; but all duties, imposts and ex- 
cises, shall be uniform throughout the United States. [See 5 
Wheaton, 317]. 

2. To borrow money on the credit of the United States. 

3. To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes. [See 9 Wheaton, 1,2. 
HalVs Am. L. Journ., 255, 272. Johns,, 488.] 

4. To establish an uniform rule of naturalization, and uni- 
form laws on the subject of bankruptcies, throughout the 
United States. [See 4 Wheaton, 122, 193, 209. 2 Wheaton, 266 
20 Johns., 93.] 

5. To coin money, regulate the value thereof, and of foreign 
coins, and fix the standard of weights and measures. 

6. To provide for the punishment of counterfeiting the secu- 
rities and correct coin of the United States. 

7. To establish post offices and post roads. 

8. To promote the progress of science and useful arts, by se- 
curing, for limited times, to authors and inventors, the exclu- 
sive right to their respective writings and inventions. [See 
Wheaton's app., n. 2,p. 13. 7 Wheaton, 356.] 

9. To constitute tribunals inferior to the Supreme Court. 

10. To define and punisht piracies and felonies committed on 
the high seas, and offences against the law of nations. [5 
Wheaton, 184, 153J6. Wheaton, 336.] 

11. To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water. [8 Cranch, 
110, 154,] 






CONSTITUTION. L83 

12. To raise ami support armies ; but no appropriat ion of 

money to that use shall be for a longer term than two years 

18. To provide and maintain a navy. [See 1 Mason, 79, 81. 
4 !>'iun., 487.] 

14. To make rules for the government and regulation of the 
land and naval forces. 

15. To provide for calling forth the militia to execute the 
laws of the Union, suppress insurrections, and repel invasions. 
[See 5 Wheaton, 1. 19 Johns., 7.] 

1G. To provide for organizing, arming and disciplining the 
militia, and for governing such part of them as may be em- 
ployed in the service of the United States, reserving to the 
States, respectively, the appointment of the officers, and the 
authority of training the militia according to the discipline 
prescribed by Congress. [3 S. & R., 169. 5 Wheaton, 1. 19 
Johns., 7.] 

17. To exercise exclusive legislation, in all cases whatsoever 
over such districts (not exceeding ten miles square) as may, by 
cession of particular States, and the acceptance of Congress, 
become the seat of government of the United States; and to 
exercise like authority over all places purchased by the 
consent of the Legislature of the State in which the same shall 
be, for the erection of forts, magazines, arsenals, dock-yards and 
other needful buildings; and — [See 2 Mason, 60. 5 Wheaton, 
217, 234. 6 Wheaton, 440. Jour, of Juris., 47, 156. 17 Johns., 
225.] 

18. To make all laws which shall be necessary and proper, 
for carrying into execution the foregoing powers and all other 
powers vested by the Constitution in the government of the 
United States, or in any department or officer thereof. [4 
Wheaton, 313. 6 Wheaton, 204.] 

LIMITATIONS OF THE POWERS OF CONGRESS. 

Sec. IX. 1. The migration or importation of such persons as 
any of the States now existing shall think proper to admit 
shall not be prohibited by tin* Congress, prior to the year one 
thousand eight hundred and eight, but a tax or duty may be 
imposed on such importation, not exceeding ten dollars for 
each person. 



184 APPENDIX. 

2. The privilege of the writ of habeas corpus shall not be sus- 
pended, unless, when in cases of rebellion or invasion, the pub- 
lic safety may require it. 

3. No bill of attainder, or ex post facto law shall be passed. 
[See 3 Dallas, 387, 396. 6 Binn., 271.] 

4. No capitation or other direct tax shall be laid, unless in 
proportion to the census or enumeration, hereinbefore directed 
to be taken. [See 5 Wheaton, 317. 3 Ball., 171.] 

5. No tax or duty shall be laid on articles exported from any 
State. No preference shall be given, by any regulation of 
commerce or revenue, to the ports of one State over those of 
another; nor shall vessels bound to or from one State, be 
obliged to enter, clear, or pay duties in another. 

6. No money shall be drawn from the treasury, but in conse- 
quence of appropriations made by law ; and a regular state- 
ment and account of the receipts and expenditures of all 
public money shall be published from time to time. 

7. No title of nobility shall be granted by the United States , 
and no person holding any office of profit or trust under 
them, shall, without the consent of the Congress, accept of 
any present, emolument, office or title of any kind whatever, 
from any king, prince or foreign State. 

LIMITATIONS OF THE POWERS OF INDIVIDUAL STATES. 

Sec. X. 1. No State shall enter into any treaty, alliance or 
confederation ; grant letters of marque and reprisal ; coin 
money; emit bills of credit; make anything but gold and sil- 
ver coin a tender in payment of debts ; pass any bill of attain- 
der, ex post facto law, or law impairiDg the obligation of con- 
tracts ; or grant any title of nobility. [See 8 Wheat., 84, 92, 256, 
n. 464. 5 Wheat., 420. 4 Wheat, 519, 1,209. 6 Wheat., 131. 16 
Johns., 233. 13 Mass., 16. 17 Johns., Ch. R. t 297. 2 Cowen, 626. 

2. No State shall, without the consent of the Congress, lay 
any imposts or duties on imports or exports, except what may 
be absolutely necessary for executing its inspection laws ; and 
the net produce of all duties and imposts laid by any State on 
imports or exports, shall be for the use of the Treasury of the 
United States; and all such laws shall be subject to the revision 
and control of the Congress. No State shall, without the con- 
sent of Congress, lay any duty of tonnage, k^ep troops or ships 



runoN. 

of war in Hum of peace, enter into any agreement or compact 
with another State, or with a foreign power, or engage in war, 

unless actually invaded, or in such imminent danger M will 
not admit of delay. 

ARTICLE II. 

OK THK PRESIDENT— OK TIIK K\ K< III V K POWER. 

10:: I. 1. The executive power shall be vested in a Presi- 
dent of the United States of America. He shall hold his office 
during the term of four years, and together with the Vice Pres- 
ident, chosen for the same term, be elected as follows: 

MANNER OF ELECTING. 

2. Each State shall appoint, in such manner as the Legisla- 
ture thereof may direct, a number of electors equal to the 
whole number of Senators and Representatives to which the 
State may be entitled in Congress; but no Senator or Repre- 
sentative, or person holding an office of trust or profit under the 
United States, shall be appointed an elector. [Altered, see 
Amendments, Article XIL] 

3. The electors shall meet in their respective States, and vote 
by ballot, for two persons, of whom one, at least, shall not be an 
inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each ; which list they shall sign and certify, and trans- 
mit, sealed, to the seat of the government of the United States, 
directed to the President of the Senate. The President of the 
Senate shall, in the presence of the Senate and House of Repre- 
sentatives, open all the certificates, and the votes shall then be 
counted. The person having the greatest number of votes 
shall be the President, if such number be a majority of the 
whole number of electors appointed; and if there be more than 
one who have such majority, and have ah equal number of 
votes, then the House of Representatives shall immediately 
choose, by ballot, one of them for President ; and if no person 
have a majority, then, from the five highest on the list, and 
said House shall in like manner choose the President. But in 
choosing the President, the votes shall be taken by States, the 
representation from each State having one vote; a quorum for 
this purpose shall consist of a member or members from two- 



186 APPENDIX. 

thirds of the States, and a majority of all States shall be neces- 
sary to a choice. In every case, after the choice of the Presi- 
dent, the person having the greatest number of votes of the 
electors shall be the Vice President. But if there should re- 
main two or more who have equal votes, the Senate shall 
choose for them, by ballot, the Vice President. [This clause 
is altogether altered and supplied by the Xllth amendment, which 
ivas adopted in 1804, on account of the difficulties that arose at the 
time of Jefferson 1 s first election to the Presidency.'] 

4. The Congress may determine the time of choosing the 
electors, and the day on which they shall give their votes, 
which day shall be the same throughout the United States. 

WHO MAY BE ELECTED PRESIDENT. 

5. No person except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, 

shall be eligible to the office of President; neither shall any 
person be eligible to that office who shall not have attained to 
the age of thirty-five years, and been fourteen years a resident 
within the United States. [See also as to the Vice President. See 
Xllth amendment, post.] 

IN CASE OF REMOVAL, <fcC., OF THE PRESIDENT, HIS POWERS TO 
DEVOLVE UPON THE VICE PRESIDENT, &C. 

6. In case of the removal of the President from office, or of 
his death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the Vice 
President ; and Congress may, by law, provide for the case of 
removal, death, resignation, or inability, both of the President 
and Vice President, declaring what officer shall then act as 
President, and such officer shall act accordingly, until the disa- 
bility be removed, or a President shall be elected. 

PRESIDENT'S COMPENSATION. 

7. The President shall, at stated times, receive for his services 
a compensation, which shall neither be increased nor dimin- 
ished during the period for which he shall have been elected; 
and he shall not receive, within that period, any other emolu- 
ment from the United States or any of them. 

8. Before he enters on the execution of his office he shall take 
the following oath or affirmation ; 



INSTITUTION. L87 

BU oath. 

••I do solemnly swear or affirm) thai I will faithfully ei 
the office of President of th<> United States, snd will, to tin- best 

of my ability, preserve, protect and defend the Constitution of 
the United States." 

TOWERS AND DUTIES OF THE PRESIDENT. 

IT. 1. The President shall be commander-in-chief of the 
army and navy of the United States, and of the militia of the 
several States, when called into the actual service of the United 
States; he may require the opinion, in writing, of the principal 
officer in each of the executive departments upon any subject 
relating to the duties of their respective offices, and he shall 
have power to grant reprieves and pardons for offences against 
the United States, except in cases of impeachment. 

OF MAKING TREATIES. 

2. He shall have power, by and with the advice and consent 
of the Senate, to make treaties, provided two-thirds of the Sen- 
ate present concur; and he shall nominate, and by and with 
the advice and consent of the Senate, shall appoint ambassadors, 
other public ministers, and consuls, Judges of the Supreme 
Court, and all other officers of the United States whose appoint- 
ments are not herein otherwise provided for, and which shall 
be established by law. But the Congress may, by law, vest the 
appointment of such inferior officers as they think proper, in 
the President alone, in the courts of law, or in the heads of 
departments. 

POWER OF APPOINTMENT. 

3. The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting com- 
missions which shall expire at the end of their next session. 

FURTHER POWERS AND DUTIES. 

III. He shall, from time to time, give to the Congress, 
information of the state of the Union and recommend to their 
coBsideration roch measures as he shall judge necessary and 
expedient; he may. od extraordinary occasions, convene both 
Houses, or either of them : and in case of disagreement be- 



188 APPENDIX. 

tween them, with respect to the time of adjournment, he may 
adjourn them to such time as he shall think proper ; he shall 
receive ambassadors and other public ministers ; he shall take 
care that the laws be faithfully executed, and shall commission 
all the officers of the United States. [See 1 Cranch, 137.] 

OF IMPEACHMENT. 

Sec. IV. The President, Vice President, and all civil officers 
of the United States, shall be removed from office on impeach- 
ment for, and conviction of, treason, bribery, or other high 
crimes and misdemeanors. 

ARTICLE III. 

OF THE JUDICIARY — OF THE JUDICIAL POWER— CONCERNING 
THE JUDGES. 

Sec. I. The judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts as the 
Congress may, from time to time, ordain and establish. The 
judges, both of the Supreme and inferior courts, shall hold their 
offices during good behavior, and shall, at stated times, receive 
or their services a compensation, which shall not be dimin- 
ished during their continuance in office. [See 7 Johns., Ch. R. 
303.] 

EXTENT OF THE JUDICIAL POWER— THIS CLAUSE ALTERED POS- 
TEA— SEE AMENDMENTS, ART. XI. 

Sec. II. The judicial power shall extend to all cases in law 
and equity, arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be made under 
their authority ; to all cases affecting ambassadors, or other 
public ministers and consuls; to all cases of admiralty and 
maritime jurisdiction ; to controversies to which the United 
States shall be a party; to controversies between two or more 
States ; between a State and citizens of another State ; between 
citizens of different States ; between citizens of the same State, 
claiming lands under grants of different States, and between a 
State, or the citizens thereof, and foreign States, citizens, or 
subjects. [See 4 Dallas, 297. 6 Wheat., 264, 405. 2 Mason, 472 
9 Wheat., 819.] 



CONSTITUTION. 189 

OF ORIGINAL AND Ari'lI.I.ATi: JIRISDICTION OF THE SUFBSM1 
COURT. 

•_'. [nail oaeea affecting ambassadors, or other public minis- 
ters and consuls, and those in which a State shall be party, 

the Supreme Court shall have original jurisdiction. In all the 
other cases before mentioned, the Supreme Court shall have 
appellate jurisdiction, both as to law and fact, with such excep- 
tions, and under such regulations, as the Congress shall make. 
[5 Sergt. A B., 545. 1 Binn., 438.] 

OF TRIALS FOR CRIMES. 

3. The trials of all crimes, except in cases of impeachment, 
shall be by jury ; and such trial shall be held in the State where 
the said crime shall have been committed ; but when not com- 
mitted within any State, the trial shall be at such place or 
places as the Congress may by law have directed. 

OF TREASON. 

Sec. III. 1. Treason against the United States shall consist 
only in levying war against them, or in adheiing to their ene- 
mies, giving them aid and comfort. No person shall be con- 
victed of treason, unless on the testimony of two witnesses to 
the same overt act, or on confession in open court. [4 Cranch 
App. Note B., 470, 126.] 

2. The Congress shall have power to declare the punishment 
of treason, but no attainder of treason shall work corruption 
of blood, or forfeiture, except during the life of the person at- 
tainted. 

ARTICLE IV. 

OF state records. 
Sec. I. Full faith and credit shall be given, in each State, to 
the public acts, records, and judicial proceedings of every 
other State. And the Congress may, by general laws, prescribe 
the manner in which such acts, records and proceedings shall 
be proved, and the effect thereof. [See 7 Cranch, 481. Wheat., 
234. 1 Peters, 81, 351. 6 Wheat., 129.] 

OF CITIZENSHIP. 

Sec. II. 1. The citizens of each State shall be entitled to all 
privileges and immunities of citizens in the several States. 
[See 4 Johns., Ch. B., 430.] 

10 



190 APPENDIX. 

OP FUGITIVES FROM JUSTICE. 1 

2. A person charged in any State with treason, felony, or 
other crime, who shall flee from justice and be found in another 
State, shall, on demand of the executive authority of the State 
from which he fled, be delivered up,*to be removed to the State 
having jurisdiction of the crime. [See 4 Johns., Ch. i?., 106.] 

OF PERSONS HELD TO SERVICE. 

3. No person held to service or labor in one State, under the 
laws thereof, escaping into another, shall in consequence of any 
law or regulation therein, be discharged from such service or 
labor, but shall be delivered up, on claim of the party to whom 
such service or labor may be due. [See 2 S. & R., 306. 3 S. & R. y 
4. 5 S & Jt., 62.] 

OF THE ADMISSION OF NEW STATES. 

Sec. III. 1. New States may be admitted by the Congress into 
this Union ; but no new State shall be formed or erected within 
the jurisdiction of any other State, nor any State be formed by 
the junction of two or more States or parts of States, without 
the consent of the Legislatures of the States concerned, as 
well as of the Congress. 

OF TERRITORIES. 

2. The Congress shall have power to dispose of, and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States; and nothing in this 
Constitution shall be so construed as to prejudice any claims 
of the United States, or of any particular State. 

OF STATE FORMS OF GOVERNMENT — REPUBLICAN FORM OF GOV- 
ERNMENT GUARANTEED TO THE SEVERAL STATES. 

Sec. IV. The United States shall guarantee to every State in 
this Union a republican form of government, and shall protect 
each of them against invasion ; and on application of the Legis- 
lature, or of the executive (when the Legislature cannot be 
convened), against domestic violence. 



wanxu TioK. 191 

ARTICLE v. 

OF amis i> mi NTS I€ THE 0OH8TITUTIOH. 

Congress, whenever two-thirds <>f both houses shall deem 

it DeceSMUrj, shall propose amendments to this Constitution, 

or on the application of the Legislatures of two-thirds of the 

several States, shall call a Convention for proposing amend- 
ments, which in either case shall he valid, to all intents and 
purposes, as part of this Constitution, when ratified hy the 
Legislatures of three-fourths of the several States, or by Con- 
ventions in three-fourths thereof, as the one or the other 
mode of ratification may be proposed by the Congress: Pro- 
vided, That no amendment which may be made prior to the 
year eighteen hundred and eight, shall in any manner affect 
the first and fourth clauses in the ninth section of the first 
article; and that no State, without its consent, shall be de- 
prived of its equal suffrage in the Senate. 

ARTICLE VI. 

OF PUBLIC DEBT. 

Sec. 1 All debts contracted, and engagements entered into 
before the adoption of this Constitution shall be as valid against 
the United States under this Constitution as under the confed- 
eration. 

OF THE SUPREME LAW OF THE LAND. 

Sec. II. This Constitution, and the laws of the United 
States which shall be made in pursuance thereof, and all 
treaties made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land; and the 
judges in every State shall be bound thereby, anything in the 
Constitution or laws of any States to the contrary notwith- 
standing. 

OF THE CONSTITUTIONAL OATH, AND RELIGIOUS TEST. 

Sec III. The Senators and Representatives before men- 
tioned, and the members of the several State Legislatures, and 
all executive and judicial officers, both of the United States 
and of the several States, shall be hound hy oath or affirmation, 
to support this Constitution ; but no religious test shall ever be 
required as a qualification to any office of public trust under 
the United States. 



192 APPENDIX. 

ARTICLE VII. 

RATIFICATION OF THE CONSTITUTION. 

The ratification of the Conventions of nine States shall be 
sufficient for the establishment of this Constitution, between 
the States so ratifying the same. [5 Wheat., 422.] 
Done in the Convention, by the unanimous consent of the 
States present, the seveuteenth day of September, in the 
year of our Lord one thousand seven hundred and eighty- 
seven, and of the Independence of the United States of 
America the twelfth. 



CONSTITUTIONAL AMENDMENTS. L98 

AMENDMENTS. 

The following articles proposed by Congress, in addition to 
and amendments of the Constitution of the United States, 

hiring been ratified by the Legislatures of three-fourths of 
the States, are become a part of the Constitution. 

First Congress, First Session, March r », 1789. 
OF THE RIGHT OF CONSCIENCE, FREEDOM OF THE PRESS, AC. 

Art. I. Congress shall make no law respecting an es- 
tablishment of religion, or prohibiting the free exercise there- 
of ; or abridging the freedom of speech, or of the press; or the 
right of the people peaceably to assemble, and to petition the 
government for a redress of grievances. [See 3 Yates, 520.] 

OF THE RIGHT TO BEAR ARMS. 

Art. II. A well regulated militia being necessary to the 
security of a free State, the right of the people to keep and 
bear arms shall not be infringed. 

OF QUARTERING TROOPS. 

Art. III. No soldier shall in time of peace be quartered iD 
any house, without the consent of the owner; nor in time of 
war, but in a manner to be prescribed by law. 

OF THE RIGHT TO BE SECURE FROM SEARCH, AC. 

Art. IV. The right of the people to be secure in their per- 
sons, houses, papers and effects, against unreasonable searches 
and seizures, shall not be violated ; and no warrant shall issue, 
but upon probable cause, supported by oath or affirmation, and 
particularly describing the place to be .searched and the per- 
sons or things to be seized. [2 Cranch, 448, 453. 6 Binn., 316.] 

OF INDICTMENTS. PUNISHMENTS, AC. 

Art. V. No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or indict- 
ment of a grand jury, except in cases arising in the land or 
naval forces, or in the militia, when in actual service in time 
Of war and public danger; nor shall any person be subject, for 
the same offence, to be twice put in jeopardy of life or limb ; 



194 



APPENDIX. 



nor shall be compelled in any criminal case to be a witness 
against himself; nor to be deprived of life, liberty or property, 
without due process of law, nor shall private property be taken 
for public use without just compensation. [18 Johns., 187, 201. 
3 Yeates, 362. 6 Binn. 509. 2 Ball, 312. 2 Johns., Ch. R., 164. 2, 
S. & R., 382. 6 Cowan, 530. 8 Wend., 85. 7 Pet., 243.] 

OF TRIAL IN CRIMINAL CASES, AND THE RIGHTS OF A 
DEFENDANT. 

Art. VI. In all criminal prosecutions, the accused shall en- 
joy the right to a speedy and public trial, by an impartial jury 
of the State and district wherein the crime shall have been 
committed, which district shall have been previously ascertained 
by law, and to be informed of the nature and cause of the ac- 
cusation ; to be confronted with the witnesses against him ; to 
have compulsory process for obtaining witnesses in his favor 
and to have the assistance of counsel for his defence. 

OF TRIAL IN CIVIL CASES. 

Art. VII. In suits at common law, where the value in con- 
troversy shall exceed twenty dollars, the right of trial by jury 
shall be preserved; and no fact tried by a jury shall be other- 
wise re-examined in any court of the United States, than ac- 
cording to the rules of the common law. [See 8 Wheat., 85, 674.] 

OF BAIL AND FINES. 

Art. VIII. Excessive bail shall not be required, nor exces- 
sive fines imposed, nor cruel and unusual punishments inflicted. 
[See 20 Johns., 457. 3 Cowan, 686.] 

OF RIGHTS RESERVED. 

Art. IX. The enumeration in the Constitution, of certain 
rights, shall not be construed to deny or disparage others, re- 
tained by the people. 

OF POWERS RESERVED TO THE STATES. 

Art. X. The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people. [1 Wheat., 325.] 



IHT1TUT10KAL AMENDMENTS. 195 

Third Congress, Second Session, December 2, 1793. Adopted 1798. 
OF THE JUDICIAL POWER — SHE ART. III., SI 

Art. XI. The judicial power of the United States shall not 
straed to extend to any suit, in law or equity, com- 
menced or prosecuted against one of the United States, by citi- 
iena of another State, or by citizens or subjects of any foreign 
State. [See 6 Wheat., 405. 1 Pet., 110. 7 Pet., 627.] 

Eighth Congress, First Session, October 17, 1803. 
MANNER OF ELECTING THE PRESIDENT AND VICE PRESIDENT. 

Art. XII. The electors shall meet in their respective States, 
and vote by ballot for President and Vice President, one of 
whom, at least, shall not be an inhabitant of the same State 
with themselves; they shall name, in their ballots, the person 
voted for as President, and in distinct ballots the person voted 
for as Vice President ; and they shall make distinct lists of all 
persons voted for as President, and of all persons voted for as 
Vice President, and the number of votes for each ; which lists 
they shall sign and certify, and transmit sealed, f to the seat 
of the government of the United States, directed to the Presi- 
dent of the Senate ; the President of the Senate shall, in the 
presence of the Senate and House of Representatives, open all 
the certificates, X an< i the votes shall then be counted ; the 
person having the greatest number of votes for President shall 
be the President, if such number be a majority of the whole 
number of electors appointed. And if no person have such 
majority, then from the persons having the highest numbers 
not exceeding three on the list of those voted for as President 
the House of Representatives shall choose immediately by 
ballot, the President ; but in choosing the President, the votes 
shall be taken by States, the representation from each State 
having one vote; a quorum fortius purpose shall consist of a 
member or members from two-thirds of the States, and a ma- 
jority of all the States shall be necessary to a choice ; and if 
the House of Representatives shall not choose a President 
whenever the right of a choice shall devolve upon them, before 



t Before the 1st Wednesday in January, by act of Congress, 1st March, 1 
X On the 2d Wednesday in February, by the same act. 



196 APPENDIX. 

the fourth day of March next following, then the Vice Presi- 
dent shall act as President, as in the case of the death or other 
constitutional disability of the President. The person having 
the greatest number of votes as Vice President shall be the 
Vice President, if such number be a majority of the whole 
number of electors appointed ; and if no person have a major- 
ity, then from the two highest numbers on the list, the Senate 
shall choose the Vice President ; a quorum for the purpose 
shall consist of two-thirds of the whole number of Senators, 
and a majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the office 
of President, shall be eligible to that of Vice President of the 
United States. 

SLAVERY PROHIBITED— 13TH AMENDMENT, PASSED 1865. 

Art. XIII. Sec. 1. Neither slavery nor involuntary servi- 
tude, except as a punishment for crime, whereof the party 
shall have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction. 

Sec. 2. Congress shall have power to enforce this article by 
appropriate legislation. 

14th amendment, adopted 1868. 

Sec. I. All persons born or naturalized in the United States 
and subject to the jurisdiction thereof, are citizens of the 
United States, and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States. Nor 
shall any State deprive any person of life, liberty, or property, 
without due process of law, nor deny to any person within its 
jurisdiction the equal protection of the laws. 

Sec. II. Representatives shall be appointed among the sev- 
eral States according to their respective numbers, counting the 
whole number of persons in each State, excluding Indians not 
taxed ; but whenever the right to vote at any election for elec- 
tors of President and Vice-President, or for United States Rep- 
resentatives in Congress, executive and judicial officers, or the 
memtorsof the Legislature thereof, is denied to any of the 
male inhabitants of such State, being twenty-one years of age, 



00N8TXT1 mOKAL AJCENDMXNT& 197 

and citisens of the United States, or in any way abridged, ex- 
oepl for participation to rebellion or other crimes, the basil 

Of representation therein shall he reduced in the proportion 
Which the number of said male citizens shall hear to the 
whole number of male citizens twenty-one yean of age in 
such State. 

III. No person shall be a Senator or Representative in 
Congress, elector of President or Vice-President, or hold any 
Office, civil or military, under the United States, or under any 
State, who, having previously taken an oath as a member of 
Congress, or as an officer of the United States, or as a member 
of any State Legislature, or as an executive or judicial officer 
of any State to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against the 
same, or given aid or comfort to the enemies thereof; but 
Congress may by a vote of two-thirds of each House, remove 
such disability. 

Sec. IV. The validity of the public debt of the United States 
authorized by law, including debts incurred for the payment of 
pensions and bounties for service in suppressing insurrection 
or rebellion, shall not be questioned, but neither the United 
States nor any State shall assume or pay any debt or obliga- 
tion incurred in aid of insurrection or rebellion against the 
United States, or claim for the loss or emancipation of any 
slave, but all such debts, obligations and claims shall be held 
illegal and void. 

Sec. V. The Congress shall have power to enforce by appro- 
priate legislation, the provisions of this article. 

FIFTEENTH AMENDMENT, PASSED BY THE 40TH CONGRESS. 
ADOPTED 1870. ^ 

ARTICLE XV. 

Sec. I. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any 
State, on account of race, color or previous condition of servi- 
tude. 

Sec. II. The Congress shall have power to enforce this arti- 
cle by appropriate legislation. 



198 



199 



200 



